Discrimination and Gay, Lesbian, Bisexual, Transgender and

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					                    2003




           Discrimination and
Gay, Lesbian, Bisexual, Transgender and
       Intersex People in the ACT




              Government Report
       to the ACT Legislative Assembly




                              Circulated by authority of
                                    Jon Stanhope MLA
                                      Attorney-General
               Contents
1.       Audit of ACT legislation.................................................................................... 1
     The review process...............................................................................................................1
       The approach to discrimination.......................................................................................1
     Discrimination and gay, lesbian and bisexual people ..........................................................2
       Discrimination and recognition of same sex relationships..............................................2
       Provisions that do not recognise same sex relationships ................................................4
       Provisions that recognise same sex relationships ...........................................................5
     Discrimination and transgender and intersex people ...........................................................6
       Definitional issues ...........................................................................................................6
       Provisions that do not recognise transgender and intersex people .................................9
       Provisions that do recognise transgender and intersex people .....................................10
     Relational discrimination ...................................................................................................11
2.       Reproductive and parenting rights ................................................................15
     Adoption Act 1993.............................................................................................................15
     Artificial Conception Act 1985..........................................................................................17
     Surrogacy arrangements.....................................................................................................19
     Transgender and intersex people and parenting.................................................................20
3.       Registering relationships .................................................................................22
     Constitutional issues ..........................................................................................................22
       The Marriage Act 1961 (Cwlth).....................................................................................22
       The Australian Capital Territory (Self-Government) Act 1988 (Cwlth)........................22
     Options for registering relationships..................................................................................23
       Possible consequences of registration ...........................................................................23
4.       Anti-vilification legislation ..............................................................................27
     Current ACT anti-vilification provisions ...........................................................................27
     Anti-vilification provisions in other jurisdictions ..............................................................28
5.       Defence of provocation ....................................................................................30
     Provocation generally ........................................................................................................30
     Use as a “gay panic” defence .............................................................................................30
     Criticism of the defence .....................................................................................................30
6.       Addressing the needs of transgender people .................................................32
     Births, Deaths and Marriages Registration Act 1997.........................................................32
     Discrimination Act 1991 ....................................................................................................34
     Other legislative provisions................................................................................................35
     Meeting the needs of transgender people...........................................................................37
7.       Intersex people and normalising surgery ......................................................39
     Intersex conditions .............................................................................................................39
     Normalising surgery...........................................................................................................39
     Crimes Act 1900 ................................................................................................................40
8.       Policy, programs and priorities ......................................................................43
9.       Community participation................................................................................45
     Gay, Lesbian, Bisexual, Transgender and Intersex People in the ACT: an Issues Paper ..45
     Focus groups ......................................................................................................................45
     Consultation outcomes .......................................................................................................46
       Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 .............................46
10. Assembly motion ..............................................................................................48
Detailed analysis of legislative provisions................................................. Appendix 1
Consultant's report on focus groups ......................................................... Appendix 2
1.       Audit of ACT legislation
         The review process
The Department of Justice and Community Safety has reviewed all ACT legislation to
identify provisions that discriminate against same sex couples, or against transgender
people or intersex people. The review identified some 70 Acts and Regulations that
contain provisions that potentially discriminate against gay, lesbian, bisexual,
transgender and intersex people, and that may need amending.

The main focus of the review in terms of discrimination on the grounds of sexual
preference has been on the recognition of relationships between people of the same
sex, as it is in personal relationships that an individual’s sexual preference is
reflected.

The main focus of the review in terms of discrimination on the grounds of gender
identity has been on the way in which an individual’s sex is recognised or reflected in
legislation.

Appendix 1 is a detailed report on the provisions that were examined as part of the
review.


         The approach to discrimination

The Government’s aim in the review is to achieve, so far as is possible, equal legal
status for lesbian, gay, bisexual, transgender and intersex people by eliminating
discriminatory references in ACT legislation.

There are a couple of ways to assess whether there is discrimination.

Under the ACT Discrimination Act 1991, discrimination occurs if a person is treated
unfavourably because of a particular attribute. So in respect of a same sex couple,
this approach would ask whether a couple in a same sex relationship are treated
unfavourably because they are of the same sex.

The second approach would be to use a comparator as is done in the Sex
Discrimination Act 1984 (Cwlth). Using this approach, the question would be
whether a same sex couple in a relationship are treated differently to an opposite sex
couple in the same type of relationship.

The comparator approach was used for the purpose of this review, due to the fact that
it is opposite sex concepts of marriage and de facto spouse that are currently used in
legislation, and because the objective is to achieve equal status. Achieving equal
status necessarily implies the use of a comparator such as A=B.

The application of the comparator approach to legislative discrimination in respect of
gender identity is slightly different. Gender is relevant in legislation where there is a
reliance on identifying people as male and female and where there are requirements
for a person to state their sex. Where this may become discriminatory is in



                                                                                         1
application – that is, if a provision does not recognise a person as being of the gender
with which the person identifies.


          Discrimination and gay, lesbian and bisexual people
There are only two pieces of ACT legislation that directly refer to sexuality in terms
of heterosexuality, homosexuality, bisexuality etc. Section 7 of the Discrimination
Act 1991 lists sexuality as one of the protected attributes under the Act. The Act does
not differentiate or discriminate in the way that it protects sexuality. Section 4 of the
Act defines sexuality in an inclusive way as:

        sexuality means heterosexuality, homosexuality (including lesbianism) or
        bisexuality.

The only other Act that explicitly refers to sexuality is section 18(1) of the Adoption
Act 1985. Section 18(1) of this Act provides for persons in whose favour adoption
orders may be made as follows:

    (1) Except as provided in this section, an adoption order shall not be made
        otherwise than in favour of a man and woman jointly, being a couple—
        (a) neither of whom is a parent of the child; and
        (b) who, whether married or not, have lived together in a heterosexual
            relationship for a period of not less than 3 years; and
        (c) who, in the opinion of the court, have demonstrated the stability of, and a
            commitment to, that relationship.

While this provision uses the term “heterosexual” it is used in the context of
“heterosexual relationship”. The provision does not require that the man and the
woman are heterosexual, merely that they have lived together in a heterosexual
relationship. The provision does not discriminate against people because they are
gay, lesbian or bisexual, but rather because their relationships are not heterosexual.
While this may seem a fine distinction, it does emphasise the point that legislative
discrimination on the grounds of sexual preference is reflected in how legislation
recognises the relationships of people who are gay, lesbian or bisexual.


          Discrimination and recognition of same sex relationships

This report uses the terms “same sex” and “opposite sex” in relation to the
examination of relationships. The use of the binary terms “same” and “opposite” is
not intended to exclude consideration of the relationships of people whose gender
identity means that they do not readily fit within the same/opposite paradigm. These
issues are examined in more detail in the sections of this report that relate to
transgender and intersex people. The terms opposite sex and same sex are used for
ease of reference only to differentiate between the types of relationships currently
recognised by law and those relationships that are not recognised by law. In
particular, “opposite sex” is specifically used to refer to the types of relationships that
are most commonly recognised in ACT legislation. These are marriage (spouse) and
de facto relationships (de facto spouse).


2
In applying the comparator, it is not possible to compare the legislative treatment of a
same sex married couple to an opposite sex married couple because there is currently
no provision in Australian law for two people of the same sex to legally marry – that
is, there is no legally recognised way for two people of the same sex to enter into a
voluntary union that attracts the same rights and obligations as marriage. The issue of
registered relationships, or civil unions, is examined further in a separate section of
this report.

The review therefore took the approach of comparing the legislative treatment of a
same sex “de facto” couple and an opposite sex de facto couple. This is because in
the absence of the option of marriage, the law must rely on the objective approach of
the nature of the relationship that two people do have, as opposed to what they might
have if the option (ie. marriage) was available.

It is arguable that it is also not possible to compare a same sex de facto couple to an
opposite sex de facto couple because the term de facto itself means that the parties are
living together as husband and wife although not legally married to each other. That
is, it is a marriage in fact but not in law and clearly, a same sex couple cannot “live
together as husband and wife”. But it is also inherently contradictory to say that an
opposite sex couple “live together as husband and wife” when they have not married,
and in some cases, may not be able to marry (eg. one of them is married to, and not
yet divorced from, another person).

Rather than looking at these relationships from the point of view of marriage, it is
more useful to look at the functional definition of a de facto relationship, which is of
two people living together as a couple on a genuine domestic basis. This type of
functional definition is used in section 44 of the Administration and Probate
Act 1929, which relevantly provides:

       eligible partner, in relation to an intestate, means a person other than the
       intestate’s legal spouse who—

        (a) whether or not of the same gender as the intestate, was living with the
            intestate immediately before the death of the intestate as a member of a
            couple on a genuine domestic basis.

The comparison that was made for the purposes of the review is thus a comparison of
the difference in the legislative treatment of two people of the same sex living
together as a couple on a genuine domestic basis and the legislative treatment of two
people of the opposite sex living together as a couple on a genuine domestic basis.

   Submissions Of the people that commented specifically on this aspect of the
   issues paper, 7 agreed that the comparison between a same sex couple and a
   de facto couple was appropriate, and 14 disagreed. The majority of people
   who disagreed thought that same sex relationships were intrinsically different
   and should not be compared to heterosexual relationships, whether married or
   de facto, because only an opposite sex couple can live together as husband and
   wife and have children.




                                                                                           3
    Some people disagreed with the comparator on the grounds that it assumes that
    everyone is one of two sexes and does not take account of bisexual, intersex
    and transgender people. It was also argued that the comparator did not
    properly take account of people who were in a relationship but not living
    together.

    Focus groups Participants felt, given the limitations of the ACT laws in respect
    to marriage legislation, that heterosexual de facto relationships were a
    reasonable comparison. (Executive Summary – Appendix 2)


          Provisions that do not recognise same sex relationships

There are a number of ACT laws that continue to have a discriminatory application to
people in same sex relationships. For example:

•   The Parental Leave (Private Sector Employees) Act 1992 provides that an
    employee to whom the Act applies is entitled to the same entitlements in respect
    of parental leave as those provided for in the draft parental leave clause set out in
    the parental leave case decision, attachment A. The entitlement is to maternity
    leave for the mother of the child, and paternity leave for the father of the child. In
    a same sex relationship between two women, the birth mother of a child would be
    eligible for maternity leave, but her female partner would not eligible for any
    leave equivalent to paternity leave.

•   Prior to its amendment by the Legislation (Gay, Lesbian and Transgender)
    Amendment Act 2003, the Protection Orders Act 2001 included “spouse” and
    “de facto spouse” in the definition of “relevant person” for the purposes of the
    domestic violence provisions. Under this Act, a person’s behaviour is domestic
    violence if it causes physical injury to a relevant person. The definition of
    relevant person would only have included a same sex partner if the partner
    “normally lives, or normally lived, in the same household as the original person”.
    The provision is intended to pick up other members of the household and only
    covers same sex partners incidentally. Although a same sex partner would be
    picked up through this slightly circuitous route, such a partner was treated
    differently to an opposite sex partner under the legislation. The legislation was
    discriminatory in form.

•   The Rates and Land Rent (Relief) Act 1970 has a definition of “pensioner” that
    relies on the Social Security Act 1991 (Cwlth). This Commonwealth Act has a
    discriminatory application as it only recognises heterosexual relationships for
    pension purposes. For example, a person in a same sex relationship is not eligible
    for a wife pension, a widowed person allowance, or a widow B pension
    notwithstanding that, but for the sex of their deceased partner, they would
    otherwise be eligible. The effect of having the definition of pensioner reliant on
    the criteria in the Social Security Act 1991 (Cwlth) is that the Minister does not
    have the power under section 3 of Rates and Land Rent (Relief) Act 1970 to defer
    the payment of rent or rates for certain owners, who, but for the fact that their
    partner is of the same sex, would be eligible pensioners.




4
Appendix 1 includes an analysis of these and other legislative provisions that were
identified in the review as having a possible discriminatory application in respect of
same sex relationships.

   Submissions Of the people that commented specifically on this aspect of the
   issues paper, 93 supported identical recognition of same sex relationships
   under the law and 48 perceived that there would be adverse outcomes.

   In more general comments 212 out of a total of 338 submissions indicated a
   general level of opposition to the equal recognition of same sex relationships.
   Of this number, the majority indicated that they were opposed to same sex
   relationships being given the same status as marriage. While this was the main
   thrust of the opposition to equal recognition, many were not opposed to some
   form of registration provided that marriage was kept separate. A recurring
   theme in these submissions was that marriage should be upheld as a societal
   ideal.

   Focus groups All participants expressed the view that people in same sex
   domestic relationships ought to be entitled to equal treatment under the law to
   those in opposite sex relationships.

   Gay, lesbian, bisexual and transgender participants did not feel that they were
   adequately protected from discrimination in their relationships under the
   current provisions of the Discrimination Act 1991. (Executive Summary –
   Appendix 2)

   Participants cited many examples of discrimination, but quite often these were
   of a social nature and outside the direct influence of the law. It was noted that
   whilst the law may not be able to protect against all possible instances of
   discrimination, it was important nevertheless that legislation make a clear
   statement that it is unlawful to discriminate against individuals or couples on
   the basis of their sexual orientation. (page 13 – Appendix 2)


         Provisions that recognise same sex relationships

Prior to the enactment of the Legislation (Gay, Lesbian and Transgender) Amendment
Act 2003, the principal legislation that recognised same sex relationships was the
Domestic Relationships Act 1994. This Act contains a quite broad definition of
domestic relationship:

       domestic relationship means a personal relationship (other than a legal
       marriage) between 2 adults in which one provides personal or financial
       commitment and support of a domestic nature for the material benefit of the
       other, and includes a de facto marriage.

This definition includes relationships between persons of the same sex. The purpose
of this Act is to establish principles to be applied by the courts when dealing with
property disposition on the dissolution of a domestic relationship. These are similar
to provisions for property disposition on the breakdown of marriage in the Family



                                                                                         5
Law Act 1975 (Cwlth).1 Essentially, the main function of this legislation is to provide
a mechanism for recognising constructive trusts.

Since the enactment of the Domestic Relationships Act 1994, many ACT laws that
previously had a discriminatory application to same sex couples have been amended.
For example:

•    Under the Administration and Probate Act 1929, the same sex partner of an
     intestate person may benefit from the estate of the intestate on the same basis as if
     they were a de facto spouse of the intestate.

•    The Coroners Act 1997 includes a same sex partner on the same basis as a spouse
     for the purposes of the Act.

•    The Land (Planning and Environment) Act 1991 recognises same sex partners for
     the purpose of dealings with rural leases.

This legislation was also included in the review because although the legislation has
been amended, the level of recognition and the terminology used to describe
relationships is not consistent across the legislation. A detailed analysis of this
legislation is included in Appendix 1. Some of this legislation has already been
amended by the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.

     Focus groups One participant made the point that including gay, lesbian and
     bisexual relationships within the domestic relationship legislation was not
     sufficient protection against discrimination. The point was made that this
     legislation only applied in the event of relationship break down or death, and
     that it did not protect same sex couples from discrimination in their day to day
     lives. (page 13 – Appendix 2)


           Discrimination and transgender and intersex people

           Definitional issues

The term “transgender” is not a term that has a universally accepted meaning. The
new definition in section 169A2 of the Legislation Act 2001 defines “transgender
person” as follows:

    (1) A transgender person is a person who—
         (a) identifies as a member of a different sex by living, or seeking to live, as a
             member of that sex; or
         (b) has identified as a member of a different sex by living as a member of
             that sex;

1
  It should be noted that Domestic Relationships Act 1994 will have a reduced application following
the November 2002 agreement of the Standing Committee of Attorneys-General to refer power to the
Commonwealth to deal with property disputes relating to separating de facto couples. The
Commonwealth was only willing to accept the referral in relation to heterosexual couples.
2
  Amendments made by the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003


6
         whether or not the person is a recognised transgender person.
    (2) A transgender person includes a person who is thought of as a transgender
        person, whether or not the person is a recognised transgender person.
    (3) A recognised transgender person is a person the record of whose sex is
        altered under the Births, Deaths and Marriages Registration Act 1997, part 4
        or the corresponding provisions of a law of a State or another Territory.3

The Discrimination Act 1991 uses the term “transsexual”, defined in section 4 as:

         transsexual means a person of one sex who—

          (a) assumes the bodily characteristics of the other sex, whether by means of
              medical intervention or otherwise; or
          (b) identifies himself or herself as a member of the other sex or lives, or
              seeks to live, as a member of that other sex.

While the Discrimination Act 1991 definition of transsexual is slightly broader than
the Legislation Act 2001 definition of transgender person, both are still different to the
everyday usage of transgender.

The term “transgender” is more generally used to refer collectively to people who
cross dress, cross-live in a different gender, and to transsexuals who permanently alter
their bodies to more closely conform with their gender identity.4 It is in this broadest
sense that the term “transgender person” is used in this report.

An intersex person is someone whose gender was ambiguous at birth –ie. the person
is born with sex chromosomes, external genitalia, or an internal reproductive system
that are not considered “standard” for either male or female.5 This is reflected in
section 169B6 of the Legislation Act 2001 as:

         An intersex person is a person who, because of a genetic condition, was born
         with reproductive organs or sex chromosomes that are not exclusively male or
         female.

An intersex person may identify themselves as male, female or neither exclusively
male nor exclusively female.

It is also useful to set out what is meant by the terms “sex” and “gender”. The
following definitions are taken from the Macquarie Concise Dictionary:

sex
      noun 1. the character of being either male or female: persons of both sexes. 2. the sum of
      the anatomical and physiological differences with reference to which the male and the
      female are distinguished, or the phenomena depending on these differences.

3
  Note that part 4 of the Births, Deaths and Marriages Act 1997 actually uses the term transsexual
person.
4
  Transgender Outreach Canberra – Glossary: http://www.tgo.org.au/
5
  Definition from the Intersex Society of North America: http://www.isna.org/
6
  Amendments made by the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003


                                                                                                     7
gender
   noun 1. Grammar a. (in many languages) a set of classes, such as masculine, feminine
   and neuter, which together include all nouns. Often the classification correlates in part
   with sex (natural gender) or animateness. b. one class of such a set. 2. sex (def. 1).
   [Middle English, from Latin: race, kind, sort, gender]
   --genderless, adjective
   Usage: A distinction is sometimes made between gender and sex, such that gender refers
   to socially conditioned characteristics or typical behaviour, and sex to the physical
   characteristics of men and women. This distinction does not seem to have become widely
   accepted, however. Some people may prefer gender to sex because of the frequent use of
   sex in the sense of `sexual intercourse'.

The note on usage of the term gender and sex emphasises one of the issues around the
use of terms such as transgender versus transsexual.

For some people, gender is viewed as a social construct and sex is core physiology
including brain sex. Thus they make a distinction between a person who identifies as
being a different gender by adopting the outward appearance and social behaviours of
a gender that is different to their core physiological sex (transgender), and a person
who adopts the outward appearance and social behaviours that are congruent with
their core physiological brain sex (transsexual) – eg. the person is and always has
been male but has incongruent female chromosomes and reproductive organs.

As noted above, this report has used the term “transgender person” as being inclusive
of transsexual persons as the term transgender appears to be most commonly used and
understood within the wider community.

    Submissions A number of people expressed concern with the definition of
    transgender person that had been used in the issues paper. The reasons for this
    concern were quite different.

    Many people expressed their concern with the definition on the basis that they
    thought it meant that transgender people might identify themselves as a
    different gender from day to day. The people expressing these views saw a
    need to distinguish between “temporary” and “permanent” identification as the
    opposite sex.

    In a similar vein but from a different perspective, some submissions expressed
    the view that transsexual people should not be included with transgender
    people because transsexual people always have been the sex that they are, but
    simply have incongruent physical attributes. These submissions also
    expressed the view that transsexualism should therefore properly be regarded
    as an intersex condition.

    A very strong view was put that intersex people should not in any way be
    included with transgender people.

    Focus groups On the question of definitions, the intersex people were of the view
    that the law should distinguish between those with an intersex condition and
    transgender people. Those interviewed felt that their condition and the issues
    they faced as intersex people were quite different to those of transgender



8
      people, and that treating them as similar was not helpful. Whilst they supported
      the rights of transgender people for equality and protection from discrimination
      under the law they were of the clear view that intersex should be recognised
      for the specific medical condition that it is. (page 17 – Appendix 2)


              Provisions that do not recognise transgender and intersex people

The issue that is common to transgender and intersex people is the way in which sex
and gender are reflected in legislation. The fundamental issue with laws and with
other societal structures is that there is little or no recognition of a broader spectrum
of sex than male and female only. The Macquarie Dictionary definition of “sex”
above, for example, reflects the binary view that if a person is not male, then they
must be female and vice-versa. It is an all or nothing approach.

Where terms such as “sex”, “male”, “female”, “man” and “woman” are used in
legislation they are not defined and hence will have their ordinary meaning. While
judicial consideration of that ordinary meaning in recent cases such as The Attorney-
General for the Commonwealth v “Kevin and Jennifer”7 has confirmed that a post-
operative transsexual man is a man for the purposes of the Marriage Act 1961
(Cwlth), this does not address the broader question of the treatment of a person who is
neither male nor female or, for that matter, a person who is a pre-operative
transsexual8.

There are a number of Acts that require a person to state their sex and which may
have a discriminatory application to transgender and intersex people. Discrimination
in this context may occur if a person is not recognised as being of the sex with which
they identify, or if they do not identify as being either male or female.

•      The Radiation Act 1983 requires a licensee who employs radiation workers, or the
       person in charge of licensed premises where radiation workers are employed, to
       keep a record of the full name, address, age and sex of each radiation worker.

•      The Electoral Act 1992 requires the sex of each elector to be included on the
       electoral roll.

•      The Adoption Act 1993 provides that an adoption order may only be made in
       favour of a man and a woman.

Appendix 1 includes an analysis of these and other legislative provisions that were
identified as part of the review as having a possible discriminatory application in
respect of transgender and intersex people.

      Submissions Of the submissions that commented specifically on the need to
      define sex where it is used in legislation, 41 were of the view that it should be
      defined, while 31 were of the view that there is no need for such a definition.
      The recurring theme in the submissions that supported the need for a definition


7
    [2003] FamCA 94
8
    Although the Full Court raised this issue, it did not come to any conclusion.


                                                                                            9
     was that such a definition should be broader than the male/female dichotomy
     and should recognise a continuum of gender.

     The people that disagreed with the need for a definition were varied in their
     reasons for their views. A number of people expressed the view that the law
     requires sex to be stated far too often and that it would be preferable to simply
     omit references to sex in legislation. Other people argued that there are only
     two sexes and therefore such a definition is not required.

     Focus groups Participants were in agreement that transgender people were not
     adequately protected by the Discrimination Act 1991. They pointed out that
     some individuals may not identify as either male or female and that the
     legislation should take note of this. They also pointed out that partners of
     transgender people were the subjects of discrimination.

     Intersex interviewees indicated that they felt the Act did not adequately protect
     some intersex people. (Executive Summary – Appendix 2)

     One participant pointed out that our society has moved beyond issues such as
     different rates of pay for men and for women and it was difficult to understand
     why a reference to sex remained necessary at all. (page 14 – Appendix 2)

     The need to have sex identified on government forms was also questioned. The
     group pointed out that gender was no longer identified on driver’s licences in
     Victoria. They said that the use of photo ID had made the need for
     identification of gender in forms, etc, obsolete in most instances. (page 14 –
     Appendix 2)

     [Intersex people’s interviews] The view was expressed that the majority of
     people with an intersex condition did not have issues around gender identity.
     That is, they saw themselves as a particular gender and everyone around them
     saw them as that gender as well. The point was made that intersex people are
     not obvious as having an intersex condition – they look, act, feel and behave as
     a particular gender. For most intersex people, they said, the question of
     whether or not the law defines sex would have little relevance for them.
     (page 16 – Appendix 2)


           Provisions that do recognise transgender and intersex people

Part 4 of the Births, Deaths and Marriages Registration Act 1997 provides a
mechanism for a person to change the sex recorded on their birth certificate in certain
circumstances. This issue is discussed in more detail later in this issues paper but
basically, it only covers a transgender person who has undergone sexual reassignment
surgery – ie. a transsexual person. Part 4 further provides that a birth certificate
issued in respect of a transsexual person is, for the purposes of any law of the
Territory, conclusive evidence of the person’s sex as stated in the certificate.

Part 4 of the Births, Deaths and Marriages Registration Act emphasises the
anatomical and physiological aspects of sex. A transgender person who cross dresses
or cross-lives in a different gender but who has not undergone sexual reassignment


10
surgery will not be helped by the provisions in part 4. One of the reasons for this is
that sexual reassignment surgery provides an objective, and presumably permanent,
threshold for determining a person’s sex.

As noted earlier, the recent amendments to the Legislation Act 2001 by the
Legislation (Gay, Lesbian and Transgender) Amendment Act 2003, included new
definitions of “transgender person”, and “intersex person”.

In contrast to the Births, Deaths and Marriages Registration Act criteria, the
definition of transgender person in the Legislation Act has much less emphasis on the
anatomical and physiological aspects of sex, and more on the social aspects of a
person living as a member of a particular sex. The reason for the emphasis on how a
transgender person identifies themself in the Legislation Act definition is because of
the use of the definition to determine the appropriate search arrangements for a
transgender person in accordance with legislative requirements.

The Legislation (Gay, Lesbian and Transgender) Amendment Act amended a number
of Acts and regulations so that they consistently recognise transgender and intersex
people for the purposes of personal search provisions. A detailed analysis of this
legislation is included in Appendix 1.

   Focus groups Transgender participants did not see sex or gender as a binary
   issue. They identified a broad spectrum of gender identities. Most participants
   could see little or no legislative rationale for defining sex in most
   circumstances. Should there be a rationale for defining sex in particular
   circumstances, then participants believed that the legislation should reflect a
   broader spectrum of gender identity than the current male/female dichotomy.
   (Executive Summary – Appendix 2)

   [Intersex people’s interviews] For those intersex people who were incorrectly
   assigned the wrong gender at birth it is possible to have their birth certificates
   amended provided they have a form signed by a doctor acknowledging that a
   mistake was made at birth. With their birth certificate amended they had full
   recognition of their preferred gender under the law. (page 16 – Appendix 2)


         Relational discrimination
One of the consequences of a failure to recognise relationships in a formal way is that
related relationships that would normally flow from that formal recognition will also
not be recognised. The most obvious example is the parent/child relationship. As
noted above, the approach that has been taken is to compare the treatment of a same
sex couple with that of a de facto couple. The follow on is that related relationships
have also been looked at from the same viewpoint – ie. can the related relationship
arise because of a de facto relationship, and if so, does it also arise because of a same
sex relationship?

The most direct relationship is that of a parent and child. As is noted in Chapter 2 –
Reproductive and parenting rights, there are currently limited avenues for same sex
partners to be recognised as a parent of their partner’s child. This has a flow on
consequence where parent/child relationships are recognised in legislation.


                                                                                         11
•    In the Administration and Probate Act 1929, the definition of “eligible partner”
     provides that a person is an eligible partner if they are “the parent of a child of the
     intestate who was not 18 years old at the date of death of the intestate”. The terms
     “parent” and “child of the intestate” are not defined and hence take on their
     ordinary meaning. As there is currently no mechanism for the same sex partner of
     the intestate to be concurrently recognised as a legal parent of the (biological)
     child of the intestate, they will not be “the parent of a child of the intestate” for the
     purposes of coming within the definition of eligible partner. Similarly, if the same
     sex partner was the biological parent of the child, there is currently no mechanism
     for the intestate to be concurrently recognised as “the parent of the child” for the
     purposes of the definition.

•    The Drugs of Dependence Act 1989 provides that an offence notice in respect of a
     simple cannabis offence committed by a child may be served on a person who
     stands in loco parentis (in place of a parent) to the child. This definition of
     stepchild would apply in respect of both an opposite sex and same sex partner of
     the parent where the partner is exercising parental responsibility for the child but
     is not legally recognised as a parent.

•    In the Crimes Act 1900, incest offences are defined by reference to the
     relationship between the two persons being one of lineal ancestor or lineal
     descent, sister, half-sister, brother, half-brother or stepchild. “Stepchild” is
     defined as including a child in relation to whom a person stands in loco parentis.
     Again, this definition of stepchild would apply in respect of both an opposite sex
     and same sex partner of the parent where the partner is exercising parental
     responsibility for the child but is not legally recognised as a parent.

•    The Domestic Relationships Act 1994 has a very broad definition of who is a child
     of the parties to a domestic relationship in section 3(4) as follows:

    (4) A reference in this Act to a child of the parties to a domestic relationship is a
        reference to each of the following children:
         (a) a child of whom the parties are the parents;
         (b) a child of whom the parties are presumed, under the Artificial Conception
             Act 1985, to be the father and mother;
         (c) a child adopted by both parties;
         (d) a child for whom both parties accept responsibility for his or her long-
             term welfare.

•    The Transplantation and Anatomy Act 1978 does not define parent generally, but
     provides an interpretative provision in section 12 which indicates that for division
     2.3 a reference to the parent of a child does not include a reference to the guardian
     of a child or to another person standing in place of a parent of the child. The term
     is not generally defined for the Act but section 12 seems to suggest that parent has
     a broader meaning in other areas of the Act.

The term “relative” is used in a number of Acts. In the majority of those Acts, the
term is undefined and will thus assume its ordinary meaning of persons related by


12
consanguinity or affinity (ie. blood or marriage). In these Acts, the application of the
term “relative” is not discriminatory in the sense that it applies to all unmarried
relationships in the same way. The term does have a discriminatory effect in relation
to a child, however, where relationships such as grandparent, sister, and so on are
dependent on the recognition of the same sex partner of the legal parent as also being
a legal parent of the child. The Birth (Equality of Status) Act 1988 ensures these flow
on effects by providing as follows:

5      Children all of equal status
       Subject to section 6, whenever the relationship of a person with his or her
       father and mother, or with either of them, is to be determined by or under the
       law of the Territory, whether in proceedings before a court or otherwise, the
       relationship shall be determined irrespective of whether the father and mother
       of the person are or have ever been married to each other, and all other
       relationships of or to that person, whether of consanguinity or affinity, shall be
       determined accordingly. (Emphasis added).

There are some Acts where “relative” is defined to have an extended meaning.

•   The Protection Orders Act 2001 and the Bail Act 1992, prior to the amendments
    made by the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003,
    defined “relative” for the purposes of the Act as including someone who would
    have been a relative if the original person had been legally married to the original
    person’s de facto spouse. Both of these Acts now define relative to include
    someone who would have been a relative if the original person had been legally
    married to the domestic partner.

•   The Discrimination Act 1991, prior to amendments made by the Discrimination
    Amendment Act 2003, defined “relative” as including a de facto spouse of a person
    who is related to the person by blood, marriage, affinity or adoption. This
    definition now refers to a domestic partner rather than de facto spouse.

The term “family” is used in a number of Acts. The meaning of family may vary
according to the sense in which it used. There are some Acts where “family” is
defined.

•   The Civil Law (Wrongs) Act 2002, prior to the amendments made by the
    Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 defined
    “family member” to include a person (whether of the same sex or a different sex)
    who, immediately before the death of the person, was living in a de facto marriage
    relationship with the person. The provision now defines “family member” to
    include a domestic partner.

•   Similarly, the Coroners Act 1997, prior to the amendments made by the
    Legislation (Gay, Lesbian and Transgender) Amendment Act 2003, defined
    “immediate family” as “a person who was the spouse of the deceased, or a parent,
    grandparent, child, brother or sister, or a guardian or ward, of the deceased”.
    “Spouse” was defined to include a de facto spouse and also a same sex partner.
    The provision now defines “immediate family” to simply include a domestic
    partner.


                                                                                      13
•    By contrast, the Liquor Act 1975 provides an exemption for persons being on
     licensed premises after hours where such persons are a member of the family of
     the licensee. Family is not defined.




14
2.         Reproductive and parenting rights
     Submissions Issues around parenting and reproductive rights generated the
     greatest number of specific comments. Adoption and IVF were most
     commonly cited as areas where continuing discrimination is warranted.

     Focus groups Gay, lesbian and bisexual participants felt that the area of
     reproductive and parenting rights was one where they faced significant
     difficulty and discrimination. Most felt that the options for gay and lesbian
     people wishing to become parents were quite limited, and that changes to the
     law could certainly provide greater choice for those wishing to become
     parents. There was also a strong view that the law did not provide adequate
     protection in those gay and lesbian relationships where children are involved.
     (page 17 – Appendix 2)


           Adoption Act 1993
One of the issues that attracts the most comment in any discussion on equality of
treatment for same sex couples is the laws relating to adoption of children. This has
been confirmed by submissions received during the consultation process. The
relevant provision of the Adoption Act 1993 is section 18:

18      Persons in whose favour adoption orders may be made
  (1) Except as provided in this section, an adoption order shall not be made
      otherwise than in favour of a man and woman jointly, being a couple—
         (a) neither of whom is a parent of the child; and
         (b) who, whether married or not, have lived together in a heterosexual
             relationship for a period of not less than 3 years; and
         (c) who, in the opinion of the court, have demonstrated the stability of, and a
             commitment to, that relationship.
  (2) An adoption order shall not be made in favour of a person who is not a parent
      of the child but has a relationship of the kind described in subsection (1) with a
      parent of the child unless—
         (a) the instrument of consent discloses consent to adoption by that particular
             person; and
         (b) the court considers that it would not be preferable to make an order
             relating to guardianship or custody of the child.
  (3) Subject to subsection (2), the court may make an adoption order in favour of 1
      person only after having regard to the wishes of the birth parents of the child.
  (4) Except in circumstances described in subsection (2) an adoption order shall
      not be made in favour of 1 person if that person is married and is not living
      separately and apart from his or her spouse.




                                                                                      15
  (5) An adoption order shall not be made in favour of a relative of the child
      unless—
         (a) the instrument of consent discloses consent to adoption by that particular
             relative; and
        (b) the court is of the opinion that—
               (i) there are circumstances why the relationships within the family of
                   the child should be redefined as such an order would do; and
              (ii) it would not be preferable to make an order relating to guardianship
                   or custody of the child.

As discussed in Chapter 1 – Audit of legislation, this provision discriminates in its
application to couples in whose favour a court may make an adoption order under
section 18(1). The court is precluded from making an adoption order in respect of a
couple who are not in a heterosexual relationship.

Section 18(2) is essentially concerned with step-parent adoptions. Because the
provision requires that the person have “a relationship of the kind described in
subsection (1) with a parent of the child”, the discriminatory requirement for a
heterosexual relationship also applies in respect of step-parent adoptions.

     Submissions Of the submissions that commented specifically on this aspect of
     the issues paper, 29 agreed that the Adoption Act 1993 should be amended to
     make same sex couples eligible to adopt children, while 146 disagreed. A
     number of submissions made extensive reference to various research studies
     regarding children raised by same sex parents. The research is conflicting and
     the studies cited reflect the particular viewpoint of the person citing the
     research.

     A great many submissions expressed the view that children need a mother and
     father and that this is the natural and normal family model. Some submissions
     argued that it would be contrary to the rights of the child to allow same sex
     couples to adopt.

     A number of submissions also expressed the view that people in same sex
     relationships make the choice to have the relationship and they should accept
     that one of the consequences of that choice is that they cannot have children.

     The submissions that supported amending the Adoption Act pointed out that
     the court considers all cases individually, and the capacity of prospective
     parents will be still assessed appropriately before an adoption order is made.
     Other submissions noted that children are reared in a number of diverse family
     formations and many same sex couples have demonstrated that they are “fit
     and proper” to raise children.

     Some submissions noted, in respect of step-parent adoptions, that if the parents
     are invisible at law, then the child is put at risk.

     Focus groups Participants agreed that the Adoption Act should be amended to
     allow for same sex couples to adopt a child. They were of the strong view that


16
     sexual orientation was irrelevant to a person’s capacity to be a good parent.
     (Executive Summary – Appendix 2)

     The intersex interviewees indicated that this was a significant issue for many
     intersex people. They felt that the Adoption Act made it difficult for those
     intersex people who were unable to reproduce due to their medical condition
     and were in a same sex relationship to adopt. They believed that the Adoption
     Act should be amended to provide for adoption for same sex couples.

     One intersex person indicated that it was difficult for heterosexual intersex
     couples to adopt as well. She felt that there was a bias in agencies towards
     families with existing children. She felt that this was discriminatory and sought
     some legislative reassurance that this practice would not be allowed to
     continue. (page 19 – Appendix 2)


           Artificial Conception Act 1985
Under the Artificial Conception Act 1985 certain conclusive presumptions about
parentage arise where a child is conceived using an artificial conception procedure.
These presumptions supplement, and in some cases override, the parentage
presumptions in the Birth (Equality of Status) Act 1988. The presumptions, and the
critical definitions, are as follows:

3       Meaning of married woman, husband and wife
    (1) A reference in this Act to a married woman includes a reference to a woman
        who is living with a man as his wife on a genuine domestic basis although not
        married to him.
    (2) A reference in this Act to the husband or wife of a person is, if the person is
        living with another person of the opposite sex (the partner) as the spouse of
        the partner on a genuine domestic basis although not married to the partner,
        and includes a reference to the partner to the exclusion of the spouse (if any)
        of the firstmentioned person.

5       Presumption of paternity
    (1) Where a married woman has, with the consent of her husband undergone a
        procedure as a result of which she has become pregnant—
         (a) her husband shall, for all purposes, be conclusively presumed to be the
             father of any child born as a result of the pregnancy; and
         (b) if any of the semen used in the procedure was produced by a man other
             than the woman’s husband—that man shall, for all purposes, be
             conclusively presumed not to be the father of any child born as a result of
             the pregnancy.
    (2) In any proceedings in which the operation of subsection (1) is relevant, the
        consent of a husband to the carrying out of a procedure in respect of his wife
        shall be presumed, but that presumption is rebuttable.




                                                                                         17
6       Presumption of maternity
        Where a woman has undergone a procedure as a result of which she has
        become pregnant—
         (a) the woman shall, for all purposes, be conclusively presumed to be the
             mother of any child born as a result of the pregnancy; and
         (b) if the ovum used in the procedure was produced by another woman—that
             other woman shall, for all purposes, be conclusively presumed not to be
             the mother of any child born as a result of the pregnancy.

7       Donor of semen—other circumstances
        Where a procedure is carried out in respect of—
         (a) a woman who is not a married woman; or
         (b) a married woman otherwise than with the consent of her husband;
        any man who produced semen used in the procedure (not being, in the case of
        a married woman, her husband) shall, for all purposes, be conclusively
        presumed not to be the father of any child born as a result of a pregnancy
        occurring by reason of that procedure.

One of the effects of these provisions is to give legal recognition to the social, rather
than the biological parents of a child born as a result of a pregnancy resulting from an
artificial insemination or in vitro fertilisation procedure. This has a number of
immediate flow on consequences for the child and the parents in terms of ability to
make medical and other decisions on behalf of the child, inheritance and maintenance
of the child.

These parentage presumptions operate to only recognise the woman who gives birth
to the child and her male partner (if any) as parents of the child. The critical factor in
the paternity presumption in section 5(1)(a) is the relationship of the man in relation
to the woman who gives birth to the child. The Act has a discriminatory effect in that
it does not treat a woman in the same type of relationship in the same manner – ie. it
does not recognise same sex relationships in the same way as it recognises opposite
sex relationships.

     Submissions Of the submissions that commented specifically on this aspect of
     the issues paper, 100 agreed that the Artificial Conception Act 1985 should be
     amended to recognise as a parent the same sex partner of a woman giving birth
     to a child conceived using artificial reproductive technology, and 105
     disagreed.

     Of the submissions that agreed that the Act should be amended, many
     expressed the view if the partner is going to take a role as a parent, then this
     should be legally recognised as it is important for the safety and welfare of the
     child.

     Some submissions argued that all social parents should be recognised and that
     the law should be able to take account of more than two parents.



18
     The submissions that did not think the Act should be amended in this way
     generally cited many of the same reasons put forward in opposition to
     amendments to the Adoption Act. That is, it is not in the best interest of the
     child, and children need a mother and father.

     In addition, there were 62 submissions indicating opposition to either IVF or
     assisted reproductive technologies generally being available to same sex
     couples. It was apparent that many people thought that assisted reproductive
     technologies were not currently available to same sex couples in the ACT and
     that these “current restrictions” should continue. Only 2 submissions
     specifically indicated that they thought assisted reproductive technologies
     should be made available to same sex couples – the 100 submissions that
     supported the proposal correctly assumed that there is no restriction on access.

     Focus groups Participants felt that the Artificial Conception Act should be
     amended to recognise the non-birth mother in a lesbian relationship where the
     child is born through assisted reproductive technology. They believed that the
     parenting rights and responsibilities of the non-birth mother should be
     reflected in the law. (Executive Summary – Appendix 2)

     Participants believed that the parenting rights and responsibilities of the non-
     birth mother should be reflected in the law. This was considered important for
     several reasons: in terms of recognition of the parents and child as a family
     unit; in terms of providing protection against discrimination in specific
     instances; and also in enabling the non-biological mother to exercise her rights
     as a parent. (page 19 – Appendix 2)


           Surrogacy arrangements
The Artificial Conception Act 1985 also allows the genetic parents of a child born
under a substitute parent agreement to apply for an order recognising them as the
parents of the child (a “parentage order”). Section 10 of the Act provides:

10      Applying for an order
  (1) The substitute parents of a child may apply, in accordance with this section, to
      the Supreme Court for a parentage order about the child.
  (2) The application may be made by either or both of the substitute parents.
  (3) The application must be made within 6 months after the child was born, but
      not within 6 weeks after the child was born.

The relevant definition of substitute parent and substitute parent agreement are
contained in section 2 of the Act:

        substitute parent, of a child in relation to whom a parentage order is applied
        for, means a person who, because of a substitute parent agreement, has
        indicated his or her intention to become a prescribed parent of the child.




                                                                                        19
        substitute parent agreement, about a child in relation to whom a parentage
        order is applied for, means a substitute parent agreement within the meaning of
        the Substitute Parent Agreements Act 1994 if—

         (a) under the agreement, a man and a woman have indicated their intention
             to become the prescribed parents of the child; and
         (b) either the man is the child’s genetic father, or the woman is the child’s
             genetic mother; and
         (c) the agreement is not a commercial substitute parent agreement within the
             meaning of that Act.

The Act has a discriminatory application in that only “a man and a woman” who have
indicated their intention to become the parents of a child born as the result of a
substitute parent agreement may apply for a parentage order.

This means, for example, that while two men who are a couple may enter into a
surrogacy arrangement with a woman under which the woman agrees to become
pregnant using the semen of one of the men, and it is intended that the child born as a
result of the pregnancy will be taken to be the child of the two men, this parentage
relationship can not be recognised in the same way as would a relationship involving
an opposite sex couple.

     Submissions Of the submissions that commented specifically on this aspect of
     the issues paper, 79 agreed that the Artificial Conception Act 1985 should be
     amended to allow same sex couples to apply for a parentage order, and 35
     disagreed.

     Submissions were generally of the view that if such orders were available to
     married and de facto couples, then they should also be available to same sex
     couples.

     A few submissions, both for and against, expressed either a level of discomfort
     or disagreement with surrogacy arrangements generally.

     Focus groups This issue was not considered in any detail as none of the
     participants had any experience of the situation. However, the group believed
     that the rights of a same sex couple in this regard should be no different from
     the rights that currently exist for opposite sex couples. (Executive Summary –
     Appendix 2)


           Transgender and intersex people and parenting
As noted above, the Births, Deaths and Marriages Registration Act 1997 provides
that a new birth certificate issued to a transsexual person under part 4 of that Act is
conclusive evidence that the person’s sex is the sex stated in the certificate. This
applies for all ACT law including the Artificial Conception Act 1985. This means that
a female to male transsexual person would be conclusively presumed to be the father
of a child in the circumstances of section 5(1)(a) of the Artificial Conception
Act 1985.


20
Similarly, such a transsexual person may also be able to apply for a parentage order
for a child born under a substitute parent agreement under division 3.2 of the Artificial
Conception Act 1985.

Where the provisions of the Artificial Conception Act 1985 and the Adoption Act 1993
will have a discriminatory application in respect of transgender and intersex people is
where such a person does not readily fit within the concept of “man” or “woman” or
is not legally recognised as such.

   Submissions There were 4 submissions that commented specifically on this
   aspect of the issues paper. These submissions expressed the view that any
   amendments to the law should also take account of the parenting roles of
   transgender and intersex people.

   Submissions expressed the view that if a person does not fit within the
   category of being a transsexual person under the Births, Deaths and Marriages
   Registration Act 1997, then they may not have any protection in respect of
   their parenting roles.

   Submissions also pointed that the law should not assume transgender people
   are opposite sex attracted.

   Focus groups Participants pointed out that only those who meet the rigorous
   criteria for a change of birth certificate are catered for under the Artificial
   Conception Act 1985. However, the focus group felt that those transgender
   people who do not wish to undergo invasive reassignment surgery or who do
   not wish to divorce their marriage partner are strongly discriminated against by
   the provisions of the Act. The focus group participants felt that there was no
   legislative need to designate either parent as ‘mother’ or ‘father’ but rather to
   simply recognise a ‘parent’. They felt that the Act should thus be amended to
   allow for transgender people to be recognised as a non-birth parent where
   applicable and to be able to apply for a parentage order where that is
   applicable. (page 20 – Appendix 2)




                                                                                       21
3.       Registering relationships
         Constitutional issues

         The Marriage Act 1961 (Cwlth)

Section 51 (xxi) of the Australian Constitution gives power to the Commonwealth
Government to make laws with respect to marriage.

The Commonwealth Marriage Act 1961, while it does not directly define marriage,
does require a marriage celebrant or marriage officer, during the marriage ceremony,
to state that marriage, according to the law of Australia, is “...the union of a man and a
woman to the exclusion of all others, voluntarily entered into for life” (see for
example section 46 of the Act – Certain authorised celebrants to explain the nature of
marriage relationship). It therefore does not seem that it is possible for same sex
couples to marry under existing Australian law.


         The Australian Capital Territory (Self-Government) Act 1988 (Cwlth)

The Australian Capital Territory (Self-Government) Act 1988 (the Self-Government
Act) of the Commonwealth provides in section 22 that the Legislative Assembly has
power to make laws with respect to the peace, order and good government of the
Territory. Section 23 of the Self-Government Act then goes on to exclude laws with
respect to certain matters from the general power in section 22. On its face, section
22 is sufficiently broad to enable the Legislative Assembly to make a law with respect
to registering relationships between persons of the same sex.

Section 28 of the Self-Government Act, however, goes on to provide as follows:

28 Inconsistency with other laws

        (1) A provision of an enactment has no effect to the extent that it is inconsistent with
            a law defined by subsection (2), but such a provision shall be taken to be
            consistent with such a law to the extent that it is capable of operating
            concurrently with that law.

        (2) In this section:

            law means:
              (a) a law in force in the Territory (other than an enactment or a subordinate
                  law); or
              (b) an award, order or determination, or any other instrument of a legislative
                  character, made under a law falling within paragraph (a).

For a law relating to registered relationships to be effective, it must not be
inconsistent with the Marriage Act 1961 (Cwlth). One test of inconsistency may be
expressed in terms of whether the Commonwealth has expressed an intention to cover
the field. However, because of the way in which section 28 of the Self-Government
Act is framed, it would not prevent the operation of an ACT statute simply because it



22
operated in the same area as a law of the Commonwealth but only if the two laws
could not operate concurrently. Provided that the Territory does not purport to make
a law with respect to marriage as covered by the Marriage Act 1961 (Cwlth), such a
law would not fall foul of section 28 of the Self-Government Act. Legislation that
dealt with recognition of same sex relationships would appear to both cover different
ground from that covered by the Marriage Act 1961 and be capable of concurrent
operation with it.

There is another constitutional factor that may have an impact on a law with respect to
registered relationships. The Commonwealth Government may make a law adding to
the list of matters in section 23 of the Self-Government Act at any time. This
approach has previously been used to add laws with respect to euthanasia to the list of
matters that are excluded from the Legislative Assembly’s general power to make
laws for the peace, order and good government of the Territory.


         Options for registering relationships
A same sex couple may currently enter into a domestic relationship agreement that
makes provision for particular matters. The financial aspects of that agreement may
be enforced under the Domestic Relationships Act 1994 and the agreement is
otherwise subject to, and enforceable under, the law of contract.

Currently the only mechanism for “registering” a relationship under ACT law is the
Registration of Deeds Act 1957. This Act provides that a person may register a deed
with the Registrar-General. While a relationship evidenced by a deed may be
registered, no particular legal status attaches to this. It is simply entered in the
register.

There are a number of European and North American jurisdictions that provide
statutory schemes for the recognition of same sex relationships. The benefits and
obligations that the various schemes confer vary.


         Possible consequences of registration

There are a number of advantages and disadvantages to a registration scheme. The
NSW Law Reform Commission discusses some of these in Discussion Paper 44 -
(2002) - Review of the Property (Relationships) Act 1984 (NSW) as follows:

  Benefits and drawbacks of registration
  2.73 Registration has the benefit of certainty. That certainty removes the need for
  legislative preconditions such as requiring cohabitation. The parties to a relationship can
  be readily identified, and have demonstrated that they know about, and agree to be bound
  by, the legislation and its provisions. It would give people who do not wish or are legally
  unable to marry, such as gay and lesbian couples,98 the opportunity to have their
  relationship registered and formally recognised by the State. It also provides a system of
  recognition for people who do not wish to live together, but want to acknowledge their
  relationship of mutual support.

  2.74 However, unlike other parts of the world, no Australian report or inquiry on the issue
  has supported registration as the sole method of relationship recognition. The Gay and
  Lesbian Rights Lobby have repeatedly expressed concern about registration, arguing that,
  while purporting to give legitimacy to relationships, it would in fact establish a hierarchy of



                                                                                              23
     legally recognised relationships and be seen as a "second best" option.99 The Social
     Issues Committee noted that registration would be unlikely to achieve more than the
     current presumptive regime under the PRA, and consequently recommended that such a
     system not be introduced.100

     2.75 It has also been argued that few people would be likely to register relationships.101
     Heterosexual couples who choose not to marry would be unlikely to opt for another type of
     formal recognition, while same-sex couples may not want to register their relationships
     due to concerns about homophobia, or because of the issues noted above raised by the
     Gay and Lesbian Rights Lobby.

     2.76 A further difficulty with adopting an opt-in approach is ensuring information remains
     updated. Otherwise, people may still be formally registered years after they separate and
     repartner. One way of addressing this problem is to require all registrations to be renewed
     regularly, for example every three years. Another issue is whether both parties should be
     required to end or update a registration, or whether this should be permitted unilaterally.

If the ACT did proceed down the path of providing a registration scheme, there are a
number of possible consequences that could flow from the “registered” status.

•    Registration could serve as a historical record in much the same way as the
     current register of births, deaths and marriages.

•    Registration could serve as evidence that two people are in a domestic partnership.

•    Registration could immediately confer particular status under legislation that
     would otherwise only arise after a period of time. For example, under the
     Administration and Probate Act 1929, registration could automatically confer
     eligible partner status on a person for intestacy purposes.

•    Registration could serve as a mechanism to recognise the relationship of two
     people who do not live together as being a domestic partnership.

•    Registration could give rise to a general right to maintenance.

     Submissions Of the submissions that commented specifically on this aspect of
     the issues paper, 97 agreed that there would be a benefit in the ACT providing
     a mechanism to register same sex relationships in the Territory, and 33 did not
     agree.

     Reasons for agreeing with the proposition were varied. Some submissions
     expressed the view that registration would be symbolically important and
     would go a long way to remove the current social invisibility of same sex
     relationships that is caused by the absence of formal recognition.

     Other submissions expressed the view that registration would be important as
     an evidentiary tool to establish relevant status for the purposes of matters such
     as consenting to medical treatment for a partner, property and estate
     settlement, life insurance and superannuation, or where the parties do not
     cohabit. A large number of submissions expressed the view that rights and
     obligations flowing from registration should be the same as for marriage.




24
A number of submissions emphasised that registration should be optional and
should not be a requirement in order to obtain legislative rights.

A number of submissions also commented that registration would be of benefit
only in the absence of the option of marriage.

Submissions that did not see any benefit in a registration mechanism were also
varied in views. Some submissions expressed the view that there was no
significant benefit to be gained from registration and it was not worth the
battle. Other submissions expressed the view that existing laws such as the
Domestic Relationships Act 1994 are sufficient.

Still other submissions expressed the view that registration would reduce the
importance of marriage. The potential for inconsistency with Commonwealth
law was raised in a number of submissions.

In response to the question of whether registration should also be available for
opposite sex relationships, 72 submissions agreed and 14 submissions
disagreed.

Submissions were generally of the view that it would be discriminatory not to
also make registration available to opposite sex relationships.

Submissions that disagreed were generally of the view that opposite sex
couples already have the option of marriage so providing for registration is not
necessary.

Focus groups The majority of participants thought that it would be beneficial to
be able to register same sex relationships in the ACT. They felt that by
providing such a mechanism the ACT government would be sending a
message to society that same sex relationships are valid.

Participants were also of the view that heterosexual people should be entitled
to register their relationships should they wish to do so. (Executive Summary –
Appendix 2)

There was some discussion around just how much effect registering a
relationship would have on being treated equally under the law and in
providing protection against discrimination. Some expressed a view that in the
event of a relationship break down, or the death of a partner, the fact that the
relationship had been registered might assist in issues around property
settlement and entitlements.

Some were of the view that registering relationships would not necessarily
provide protection against discrimination on some significant issues, such as
parental rights and responsibilities. One participant expressed concern over
what would happen to her children if she were to die. Her fear was that the law
would recognise the biological father (her former partner) as the rightful
parent, and that her current partner would have no rights even though she was
considered to be the parent of the children. This participant felt that having the
relationship registered would not necessarily protect against such a situation.


                                                                                     25
     Others felt that it may indeed carry some weight in the Family Court, and that
     registration would at least be better than nothing. (page 21 – Appendix 2)




26
4.       Anti-vilification legislation
         Current ACT anti-vilification provisions
Current anti-vilification legislation in the ACT only applies to racial vilification.
Part 6 of the Discrimination Act 1991 provides as follows:

65     Meaning of public act
       In this part:
       public act includes—

        (a) any form of communication to the public, including speaking, writing,
            printing, displaying notices, broadcasting, telecasting, screening and
            playing of tapes or other recorded material; and
       (b) any conduct (not being a form of communication referred to in paragraph
           (a)) observable by the public, including actions and gestures and the
           wearing or display of clothing, signs, flags, emblems and insignia; and
        (c) the distribution or dissemination of any matter to the public.

66     Racial vilification—unlawful
  (1) It is unlawful for a person, by a public act, to incite hatred towards, serious
      contempt for, or severe ridicule of, a person or group of persons on the ground
      of the race of the person or members of the group.
  (2) Nothing in this section renders unlawful—
        (a) a fair report of a public act referred to in subsection (1); or
       (b) a communication or the distribution or dissemination of any matter
           comprising a publication which is subject to a defence of absolute
           privilege in proceedings for defamation; or
        (c) a public act, done reasonably and in good faith, for academic, artistic,
            scientific or research purposes or for other purposes in the public interest,
            including discussion or debate about and expositions of any act or matter.

67     Serious racial vilification—offence
       A person shall not, by a public act, incite hatred towards, serious contempt for,
       or severe ridicule of, a person or group of persons on the ground of the race of
       the person or members of the group by means which include—
        (a) threatening physical harm towards, or towards any property of, the person
            or group of persons; or
       (b) inciting others to threaten physical harm towards, or towards any
           property of, the person or group of persons.




                                                                                        27
          Maximum penalty: 50 penalty units.

At present, the specific vilification provisions do not extend to any acts toward
lesbians, gays, bisexuals, transgender and intersex people nor do they cover acts of
vilification toward persons infected with HIV/AIDS. In many circumstances
vilification on these grounds will be covered by the Act as a form of discrimination.
Under section 8 of the Act, discrimination is relevantly defined as “unfavourable
treatment”.

The test for discrimination under the Act (unfavourable treatment) is much broader
than the Act’s current test for racial vilification, which requires a public act and
incitement to hatred, serious contempt or severe ridicule.


             Anti-vilification provisions in other jurisdictions
The NSW Anti-Discrimination Act 1977 creates offences of racial vilification and
serious racial vilification, transgender vilification and serious transgender vilification,
homosexual vilification and serious homosexual vilification, and HIV/AIDS
vilification and serious HIV/AIDS vilification. The provisions are all expressed in
almost identifical terms to the ACT vilification provisions. The critical difference in
the way in which the NSW vilification provisions are expressed is in the area of the
exceptions equivalent to section 66(2)(b) of the Discrimination Act 1991 above.
Specifically, the NSW transgender and HIV/AIDS vilification provisions include an
additional exception where the public act is done reasonably and in good faith for
“religious discussion or instruction” purposes9, and the homosexual vilification
provision includes an additional exception where the public act is done reasonably
and in good faith for “religious discussion” purposes10.

The Tasmanian Anti-Discrimination Act 1998 also contains provisions relating to
vilification. Like the NSW provisions, these provisions are expressed in almost
identical terms to the ACT racial vilification provisions. The Tasmanian Act does not
have any religious discussion or religious instruction exceptions. The main difference
between the Tasmanian and ACT legislation is that the Tasmanian Act has a wider list
of grounds for vilification:

Inciting hatred
19.       A person, by a public act, must not incite hatred towards, serious contempt for,
          or severe ridicule of, a person or a group of persons on the ground of –
                (a) the race of the person or any member of the group; or
                (b) any disability of the person or any member of the group; or
                (c) the sexual orientation or lawful sexual activity of the person or any
                member of the group; or
                (d) the religious belief or affiliation or religious activity of the person or
                any member of the group.


9
    Section 38S(2)(c) and 49ZXB(2)(c) respectively of the NSW Anti-Discrimination Act 1977
10
     Section 49ZT(2)(c) of the NSW Anti-Discrimination Act 1977


28
Sexual orientation is defined in the Tasmanian Act to include heterosexuality,
homosexuality, bisexuality, or transsexuality.

   Submissions Of the submissions that commented specifically on this aspect of
   the issues paper, 102 agreed that the Discrimination Act 1991 should prohibit
   acts of vilification against gay, lesbian, bisexual, transgender and intersex
   people, or people with HIV/AIDS, and 43 disagreed.

   Many of the submissions in support of such vilification laws were quite
   emphatic about the need for such laws. A number of submissions commented
   that such laws were important in sending a clear message that such acts of
   hatred are not acceptable.

   A common theme in submissions that did not support vilification laws was a
   concern that such laws may impinge free speech or be used to restrict religious
   teachings.

   Focus groups Participants were of the view that making it explicit in the
   legislation that it is unlawful to vilify or discriminate on the basis of sexuality
   or gender identity would be an important addition to the legislation. (Executive
   Summary – Appendix 2)

   There was some discussion over whether the legislation could actually change
   the attitudes of the wider society. One person pointed out that even if law
   reform doesn’t change attitudes in the short term, it can change people’s
   behaviour. Attitudinal change might be a longer term outcome and legislative
   reform could play an important role in initiating a process of change. (page 22
   – Appendix 2)

   The point was made that it was difficult to understand whether there were any
   groups in society where it would be acceptable to vilify. However, in accepting
   that the function of the Act was to specifically name those groups that were
   particularly vulnerable to vilification, they were in strong agreement that
   transgender people should be specifically included in the Act.

   They pointed out that the current proposal to change the laws in the ACT was
   resulting in considerable vilification in the newspaper through the letters to the
   editor and that this should not be acceptable.

   Participants pointed out that partners of transgender people were also subject
   to vilification and should be included in the legislation. Several instances of
   vilification of the partner of a transgender person were cited during the
   discussion. (page 23 – Appendix 2)

   The intersex people interviewed believed that because their condition was not
   obvious instances of vilification would be extremely unlikely. They did
   however support the notion of ensuring adequate protection within the law for
   those with intersex condition as well as gay, lesbian, bisexual and transgender
   people. (page 23 – Appendix 2)




                                                                                         29
5.        Defence of provocation
          Provocation generally
The law in all States and Territories currently recognises the defence of provocation.
The defence operates to reduce a charge of murder to manslaughter.

In the ACT the elements of the provocation defence are set out in section 13 of the
Crimes Act 1900. It provides that conduct causing death shall be taken to have
occurred under provocation where:

        (a) the act or omission was the result of the accused’s loss of self-control
            induced by any conduct of the deceased (including grossly insulting
            words or gestures) towards or affecting the accused; and
        (b) the conduct of the deceased was such as could have induced an ordinary
            person in the position of the accused to have so far lost self-control—
               (i) as to have formed an intent to kill the deceased; or
              (ii) as to be recklessly indifferent to the probability of causing the
                   deceased’s death;
        whether that conduct of the deceased occurred immediately before the act or
        omission causing death or at any previous time.


          Use as a “gay panic” defence
The defence may be available to partially excuse a man who kills another man who
has made a homosexual advance towards him. The High Court case of Green v The
Queen11 contains a comprehensive discussion on the availability of the defence in the
circumstances of a non-violent homosexual advance.


          Criticism of the defence
The rationale for the defence is based on the view that there is a difference between
intentional killing in “cold blood” and killing in an extreme emotional state of lost
self-control. The defendant may intend to kill the victim, however the quality of his
or her intention is diminished by the fact that his or her free will was impeded to the
extent that they were provoked into acting as they did.12

The defence has attracted a great deal of criticism, with a number of law reform
bodies calling for its abolition.13 The defence itself contains a number of conceptual

11
   (1997) 191 CLR 334.
12
   Model Criminal Code Officers Committee, Fatal Offence Against the Person: Discussion Paper
1998, page 99; S Bronitt and B McSherry, Principles of Criminal Law, LBC, 2002, page 286.
13
   See, for example, Model Criminal Code Officers Committee, Fatal Offences Against the Person:
Discussion Paper, 1989; Attorney General’s Department, Review of Commonwealth Criminal Law:
Principles of Criminal Responsibility and Other Matters (The ‘Gibbs Report’), 1990; New Zealand
Law Reform Committee, Report on Culpable Homicide, 1976; New Zealand Crimes Consultative
Committee, Crimes Bill 1989: Report of the Crimes Consultative Committee, 1991.


30
difficulties concerning intention. Those who rely on provocation intend to kill. So
why does the fact that the defendant was acting out of control partly negate this
intention? The response is that people who lose self-control are not in the same
category as those who kill in cold blood.

Proponents for the abolition of the provocation defence essentially reject the
proposition that hot-blooded killers are less culpable than other killers. They
maintain that the overriding consideration should be for the sanctity of human life and
that the use of deadly violence should not be partly excused. For them provocation
should only be considered at the sentencing stage.

A major argument for the abolition of provocation is its potential for abuse. It can be
difficult to distinguish between those cases where a defendant was really provoked
into losing self-control, and those where the defendant merely lost his or her temper
and decided to kill.

The availability of the defence also creates a legal anomaly in the ACT, in that it does
not reduce attempted murder to attempted manslaughter. This can create a situation
whereby a successful (provoked) killer would receive a shorter sentence than one who
failed in the attempt.

The Department of Justice & Community Safety is reviewing the law of provocation
as part of progressive reforms to ACT criminal legislation and adoption of the Model
Criminal Code. The Model Criminal Code proposes that the partial defence of
provocation be abolished in the sense that its consideration should be confined solely
to the sentencing process.

   Submissions Of the submissions that commented specifically on this aspect of
   the issues paper, 99 agreed that the defence of provocation should be abolished
   in the circumstances of a non-violent homosexual advance, and 10 disagreed.

   The majority of submissions were quite emphatic that the availability of this
   defence was not appropriate and many expressed surprise that it was available.
   Many submissions pointed out that a similar heterosexual advance would not
   be an acceptable defence to murder.

   Submissions that disagreed that the specific defence should be abolished were
   generally of the view that the matter should be considered as a matter of
   general law reform. On this issue, 8 submissions were of the view that the
   defence of provocation should be abolished generally, and 6 submissions were
   of the view that it should not be abolished.

   Focus groups All participants were strongly of the view that the ‘gay panic’
   defence should in no way be used as a defence for murder. Some participants
   were concerned that abolishing the defence of provocation altogether could be
   detrimental to women who were victims of domestic violence. (Executive
   Summary – Appendix 2)




                                                                                      31
6.       Addressing the needs of transgender people
         Births, Deaths and Marriages Registration Act 1997
Part 4 of the Births, Deaths and Marriages Registration Act 1997 provides a
mechanism for a person to obtain a new birth certificate stating their new sex.
Section 24 provides as follows:

24     Application to alter register to record change of sex
  (1) A person who has attained the age of 18 years—
       (a) whose birth is registered in the Territory; and
       (b) who has undergone sexual reassignment surgery; and
       (c) who is not married;
       may apply to the registrar-general for alteration of the record of the person’s
       sex in the registration of the person’s birth.
       Note 1   A fee may be determined under s 67 (Determination of fees) for this section.
       Note 2   If a form is approved under s 69 (Approved forms) for an application under this
                section, the form must be used.

  (2) Subject to subsection (3), the parents or guardian of a child—
       (a) whose birth is registered in the Territory; and
       (b) who has undergone sexual reassignment surgery;
       may apply to the registrar-general for alteration of the record of the child’s sex
       in the registration of the child’s birth.
  (3) An application for alteration of the record of a child’s sex in the registration of
      the child’s birth may be made by 1 parent if—
       (a) the applicant is the sole parent named in the register; or
       (b) there is no other surviving parent of the child.
  (4) An application under this section must set out, or be accompanied by, the
      particulars prescribed under the regulations.

Section 23 defines “sexual reassignment surgery” in the following terms:

       sexual reassignment surgery means a surgical procedure involving the
       alteration of a person’s reproductive organs that is carried out—

       (a) for the purpose of assisting a person to be considered to be a member of
           the opposite sex; or
       (b) to correct or eliminate an ambiguity relating to the sex of the person.




32
Section 25 requires that an application under section 24 must be accompanied by a
declaration by two doctors verifying that the person making the application has
undergone sexual reassignment surgery.

Section 29 provides that a birth certificate issued in respect of a transsexual person is,
for the purposes of any law of the Territory, conclusive evidence of the person’s sex
as stated in the certificate. While a birth certificate with a person’s new sex stated on
it is conclusive evidence for the purposes of ACT law, the certificate may not
necessarily be recognised in other jurisdictions. However, the new birth certificate
does not show that there has been a change of sex so there is nothing to indicate that
the person to whom it refers is a transsexual person or has ever been regarded as of a
different sex to the one on the certificate.

A number of observations may be made about these provisions when considered in
the context of the full range of people who are covered by the broad definition of
“transgender person” that has been used in this report.

•   A transgender person who has not undergone sexual reassignment surgery cannot
    obtain a new birth certificate under this part.

•   Sexual reassignment surgery by itself would seem to be a crude determinant of
    sex. There are many reasons for an “alteration of the reproductive organs” that
    are entirely unrelated to sexual reassignment – eg. testicular or ovarian cancer.

•   The requirement for the person to be not married has some curious and
    discriminatory consequences. The fact that a person is married does not prevent
    that person from undergoing a sexual reassignment procedure – it is simply that
    they cannot apply for a certificate stating their new sex.

•   The provisions are drafted on the assumption that sex is binary and there are some
    transgender people who identify as neither male nor female. It should be noted,
    however, that the issue of the sex being binary is not specific to part 4 and applies
    generally across all areas of law.

•   The definition of “sexual reassignment surgery” in section 23 would seem to
    indicate that the provisions also apply to intersex persons.

    Submissions Of the submissions that specifically commented on this aspect of
    the issues paper, 23 were of the view that the provisions in part 4 of the Births,
    Deaths and Marriages Registration Act 1997 were appropriate, and 22 were of
    the view that they were not.

    Some submissions thought that the requirement for sexual reassignment
    surgery was appropriate as it implied a permanence.

    Other submissions thought that part 4 was too restrictive. Many submissions
    were particularly critical of the requirement for sexual reassignment surgery on
    the basis that this discriminates against those who cannot afford surgery, are
    not well enough for surgery or choose not to undergo surgery.




                                                                                         33
     Some submissions were of the view that the inclusion of intersex people in
     part 4 was inappropriate.

     Focus groups There was strong agreement amongst transgender participants that
     the current provisions of this Act are discriminatory and inadequate. The group
     believed that it was discriminatory to restrict changes to birth certificates to
     those who were not married and those who had undergone sexual reassignment
     surgery. (Executive Summary – Appendix 2)

     There was strong agreement that the requirement for sexual reassignment
     surgery was inhumane. The group suggested that sexual reassignment surgery
     is expensive, and hence many people cannot afford the process; and that it is
     highly invasive surgery, such that many transgender people do not wish to put
     their bodies and lives at risk in this manner.

     “The way the law is at the moment it’s very discriminatory against people who
     choose not to or are unable to have surgery. The surgery is very invasive and
     not everyone wants it.”

     The group also felt that sexual reassignment surgery was a relatively crude
     indicator of gender identity. A participant pointed out that since the current law
     required a person to remove one’s reproductive organs in order to become the
     ‘opposite’ gender then any woman who had a full hysterectomy could also
     meet the criteria and be called a man. (page 25 – Appendix 2)

     [Intersex people’s interviews] For those intersex people who were incorrectly
     assigned the wrong gender at birth it is possible to have their birth certificates
     amended provided they have a form signed by a doctor acknowledging that a
     mistake was made at birth. With their birth certificate amended they had full
     recognition of their preferred gender under the law. (page 16 – Appendix 2)


           Discrimination Act 1991
Under the Discrimination Act 1991, sex and transsexuality are both protected
attributes listed under section 7 of the Act. “Sex” is not defined under the Act and
hence it would take on its ordinary meaning – ie. being either male or female. The
Act defines “transsexual” as meaning:

        transsexual means a person of one sex who—

         (a) assumes the bodily characteristics of the other sex, whether by means of
             medical intervention or otherwise; or
         (b) identifies himself or herself as a member of the other sex or lives, or
             seeks to live, as a member of that other sex.

Section 7(1)(n) of the Act also includes being the partner or relative of a transsexual
person as a protected attribute as follows:




34
       (n) association (whether as a relative or otherwise) with a person identified
           by reference to an attribute referred to in another paragraph of this
           subsection.

   Submissions Of the submissions that commented specifically on transgender and
   intersex people and the Discrimination Act 1991, 66 thought that the Act did
   not provide adequate protection from discrimination for transgender or intersex
   people and 18 thought that the Act did provide adequate protection.

   There were varying views on whether the current definition of “transsexual” in
   the Act was appropriate to cover the full range of people who might be
   regarded as transgender. Some submissions advocated the use of “sex and
   gender variant” as an alternative.

   One submission also recommended that division 4.2 of the Act, which deals
   with exceptions relating to sex, should be examined in relation to gender
   variant people.

   Focus groups Participants were in agreement that transgender people were not
   adequately protected by the Discrimination Act 1991. They pointed out that
   some individuals may not identify as either male or female and that the
   legislation should take note of this. They also pointed out that partners of
   transgender people were the subjects of discrimination. (Executive Summary –
   Appendix 2)


         Other legislative provisions
As outlined in Chapter 1 – Audit of legislation – all ACT legislation has been
reviewed to determine whether it discriminates against both transgender people and
the results of that review are detailed in Appendix 1. The review identified legislation
dealing with personal searches as a particular area where transgender people may
experience discriminatory treatment.

Where legislation authorises a personal search, it generally also provides that the
search must be conducted by a person of the same sex as the person who is being
searched. This general provision can have an uncertain outcome in relation to
transgender people. While some legislation, such as in the Crimes (Forensic
Procedures) Act 2000, had particular interpretative provisions that used a transgender
person’s self-identified sex to determine who is a person of the same sex or opposite
sex for the purposes of conducting a personal search, these provisions were not
universal.

The relevant legislation has been amended by the Legislation (Gay, Lesbian and
Transgender) Amendment Act 2003 so that a transgender person may now indicate
whether they wish to be searched by a male or female when a personal search is
required. The provisions also have the effect that only persons of the sex chosen are
to be in the room while the search is being conducted.




                                                                                     35
A similar issue arises with respect to the meaning of “the opposite sex” in legislation
such as the Public Baths and Public Bathing Act 1956. Section 18 of that Act
provides as follows:

        Except for the purpose of giving assistance in the case of emergency, a person
        who has attained the age of 6 years shall not, without lawful excuse, enter a
        part of any public baths which is set apart for the exclusive use of persons of
        the sex opposite to the sex of that person and bears a notice to that effect.
        Maximum penalty: 1 penalty unit.

This provision may in practice have a discriminatory application to transgender
people. The fact that a penalty is attached to this provision (albeit a maximum of
$100) suggests that there should be some clarity. While a transgender person who has
undergone sexual reassignment surgery would be regarded as being of their
reassigned sex, the application of this type of provision to a transgender person who
has not undergone sexual reassignment surgery is less clear.

     Submissions There were 91 submissions that commented on this particular
     aspect of the issues paper, and in particular, on the Public Baths and Public
     Bathing Act 1956.

     Submissions suggested a range of approaches. Some submissions expressed
     the view that transgender people should simply use the facilities appropriate to
     their gender identification or alternatively, with which they felt most
     comfortable.

     Other submissions expressed the view that there should be a distinction
     between “temporary” and “permanent” gender identification. Of these
     submissions, there was a general concern about ulterior motives.

     Across all submissions, there was a general level of concern for the safety and
     privacy of all users of such facilities.

     A few submissions also expressed the view that there is a need for an
     awareness and education program to counteract some of the misunderstanding
     that transgender people encounter.

     Focus groups Transgender participants suggested that in all cases respect for the
     comfort and dignity of the person should be of paramount importance.
     Participants pointed out that if they were unable to utilise the facilities of their
     lived gender identity then they were afraid of possible violence. Ensuring
     separate change cubicles were provided in all public bathing facilities appeared
     to be one simple method of ensuring the privacy of the transgender individual
     and the general public. (Executive Summary – Appendix 2)

     Participants accepted that there might be some instances where there could be
     a valid reason for needing to define gender under the law. They did not believe
     that the situation of the need for personal searches to be made by a person of
     the same sex, however, was such an instance. They suggested that in all cases
     respect for the comfort and dignity of the person being searched should be of


36
   paramount importance. This suggested, they said, the person should be able to
   stipulate the preferred gender of the person by whom they would be searched.
   They indicated that most transgender people would be happy to indicate their
   status to the search agency provided they could be sure that their personal
   dignity was maintained. They also believed that any resultant cases of
   frivolous requests (eg. a man asking to be searched by a woman for sexual
   titillation purposes) could be easily dealt with by the agency. (page 27 –
   Appendix 2)


         Meeting the needs of transgender people
The consultation process invited comments on how well current legislative schemes
are addressing the needs of transgender people and whether there are needs that
should be addressed.

   Submissions There were 32 submissions that commented specifically on this
   aspect of the issues paper. Some submissions expressed the view that either
   the Government was doing a good job, or that the proposals in the issues paper
   were a good start. Other submissions expressed the view that the Government
   did not need to do anything further for what was considered to be a tiny
   minority.

   A number of submissions made suggestions about areas where further action
   may be warranted:

   •   programs to improve the level of understanding, acceptance and service
       delivery to transgender people, particularly in areas of health, welfare and
       education;
   •   greater consideration and more information about the specific health needs
       of transgender people separately from gay, lesbian and bisexual issues;
   •   target transgender and intersex youth in youth suicide prevention
       programs;
   •   measures to combat transphobia;
   •   more information for transgender people about their rights, support
       agencies and social support;
   •   remove sex and gender indicators from forms etc where there is no
       justifiable reason for their usage;
   •   consider privacy issues relating to former sex;
   •   develop standards to steamline changing sex and gender identity
       documents;
   •   allow transgender and intersex people to request the sex of the person who
       is to conduct a search;
   •   address discrimination in the provision of housing, disability and
       community services;




                                                                                      37
     •   enforceable rights for transgender people to participate in recreational and
         sporting activities; and
     •   review prison and detention policies to ensure safety and wellbeing of sex
         and gender variant people.
     Focus groups Transgender participants pointed out that they were often
     considered the third tier behind gay and lesbian people when it came to public
     funding. Education and awareness programs and health services were seen as
     particularly critical funding areas. (Executive Summary – Appendix 2)

     Several participants pointed specifically to health services for transgender
     people, stating that they had been refused medical attention on occasion; had
     been humiliated when attending for breast screening services; had been refused
     funding for alternative methods of breast screening when the more usual
     service had proved ineffective; and were refused subsidised medication for
     issues such as hirsutism. Some participants said that to receive particular drugs
     to assist their transition to their preferred gender identity they had to be placed
     on a register of ‘sexual deviants’, which they found particularly humiliating.
     They felt that the government was simply ignoring all of these issues. (page 27
     – Appendix 2)




38
7.         Intersex people and normalising surgery
           Intersex conditions
As is noted earlier in this report, an intersex person is someone whose gender was
ambiguous at birth –ie. the person is born with sex chromosomes, external genitalia,
or an internal reproductive system that are not considered ‘standard’ for either male or
female. Intersex conditions include androgen insensitivity syndrome, Klinefelter
syndrome, congenital adrenal hyperplasia, and hypospadias.


           Normalising surgery
The main issues surrounding intersex people and normalising surgery arise out of
surgery performed on intersex children. As with any surgery involving children, the
ability of the parent to consent to the particular procedure is an issue. Depending on
the particular circumstances, the parents of an intersex child may not be able to
legally consent to such a procedure.14 In such circumstances, the court would need to
consent to the procedure. It does not appear that there have been any applications to
the court in relation to normalising surgery on intersex children.

There is currently no specific formal policy or protocol on this matter within the
public hospital system in the ACT. These issues are left as matters between the legal
guardian of an intersex child and the clinician.

     Submissions Of the submissions that commented specifically on this aspect of
     the issues paper, 52 agreed that it is necessary to regulate normalising surgery
     carried out on intersex children and 15 disagreed.

     Submissions generally expressed the view that some regulation was necessary
     to protect the rights of the child until they are old enough to articulate their
     own views and that any surgery before this should be limited to circumstances
     where it is for a genuine therapeutic purpose. Some submissions suggested
     that there was a need to clarify what is a genuine therapeutic purpose.

     Other submissions expressed the view that the matter should be left to parents
     and medical advisers and no regulation was necessary.

     Focus groups The interviewees suggested that when an intersex child is born
     there is a considerable amount of pressure placed on parents by the medical
     profession. They indicated that although much of this may be well intentioned
     they believe it to be severely misplaced. Several anecdotes were recounted of
     parents being unduly pressured by the medical profession.

     The interviewees suggested that a cooling off period for parents and the
     medical profession alike should be legislatively put into place. They believed
     that the legislation should also include the requirement that parents of a new-
     born intersex child should receive counselling, talk to intersex support groups

14
  See the decision of the High Court in Secretary, Department of Health and Community Services v
JWB and SMG (“Marion’s case”) (1992) 175 CLR 218


                                                                                               39
     and hear the stories of intersex adults who have and have not been the subject
     of ‘normalising’ surgery.

     They also pointed out that intersex births are sufficiently frequent that the
     medical profession should receive education and awareness training,
     preferably from intersex support groups or the like. (page 28 – Appendix 2)


           Crimes Act 1900
Part 4 of the Crimes Act 1900 provides offences in relation to female genital
mutilation. These offences may be relevant where a medical practitioner carries out
normalising surgery that involves the removal of female genitalia. Part 4 reads as
follows:

73       Meaning of female genital mutilation for pt 4
        In this part:
        female genital mutilation means—

         (a) clitoridectomy or the excision of any other part of the female genital
             organs; or
         (b) infibulation or similar procedure; or
         (c) any other mutilation of the female genital organs.

74       Prohibition of female genital mutilation
  (1) A person shall not intentionally perform female genital mutilation on another
      person.
        Maximum penalty: imprisonment for 15 years.
  (2) It is not a defence to a prosecution for an offence against this section that the
      person on whom the female genital mutilation was performed, or a parent or
      guardian of that person, consented to the mutilation.

75       Removal of child from ACT for genital mutilation
  (1) A person shall not take a child from the ACT, or arrange for a child to be
      taken from the ACT, with the intention of having female genital mutilation
      performed on the child.
        Maximum penalty: imprisonment for 7 years.
  (2) In proceedings for an offence against subsection (1), if it is proved that—
         (a) the defendant took a child, or arranged for a child to be taken, from the
             ACT; and
         (b) female genital mutilation was performed on the child while outside the
             ACT;
        it will be presumed, in the absence of proof to the contrary, that the defendant
        took the child, or arranged for the child to be taken, from the ACT with the
        intention of having female genital mutilation performed on the child.


40
    (3) In this section:
        child means a person under the age of 18 years.

76       Exception—medical procedures for genuine therapeutic purposes
    (1) It is not an offence against this part to perform a medical procedure that has a
        genuine therapeutic purpose or to take a person, or arrange for a person to be
        taken, from the ACT with the intention of having such a procedure performed
        on the person.
    (2) A medical procedure has a genuine therapeutic purpose only if—
         (a) performed on a person in labour, or who has just given birth, and for
             medical purposes connected with that labour or birth, by a medical
             practitioner or registered midwife under the Nurses Act 1988; or
         (b) necessary for the health of the person on whom it is performed and it is
             performed by a medical practitioner.
    (3) A medical procedure that is performed as, or as part of, a cultural, religious or
        other social custom is not of itself to be regarded as being performed for a
        genuine therapeutic purpose.

77       Exception—sexual reassignment procedures
    (1) It is not an offence against this part to perform a sexual reassignment
        procedure or to take, or arrange for a person to be taken, from the ACT with
        the intention of having a sexual reassignment procedure performed on the
        person.
    (2) In subsection (1):
        sexual reassignment procedure means a surgical procedure performed by a
        medical practitioner to give a female person, or a person whose sex is
        ambivalent, the genital appearance of a person of the opposite sex or of a
        particular sex (whether male or female).

The original legislative intention of this part was to deal with female genital
mutilation (FGM) as a cultural practice. The application of the part in the
circumstances of an intersex person is secondary to this main purpose. Because the
purpose of the part was to deal with the particular cultural practice of FGM, it does
not deal with male genital mutilation.

Notwithstanding that it was not the purpose of part 4 to specifically regulate surgery
on intersex persons, the part does have some application. In particular, some
observations may be made about sections 76 and 77 when considering this part in
relation to surgery on an intersex person that involves the removal of female genital
organs.

•    The exception for genuine therapeutic purposes in section 76 would be restricted
     to circumstances where the surgery is “necessary for the health of the person on
     whom it is performed”. What is necessary for the health of the person would need
     to be determined according to the particular circumstances of the case.



                                                                                        41
•    Section 77 provides a further exception for sexual reassignment procedures. The
     use of the phrases “or a person whose sex is ambivalent” and “or of a particular
     sex (whether male or female)” in the definition of sexual reassignment procedure
     in section 77(2) indicates an intention to include genital surgery on intersex
     persons under this exception. As such, it would not seem to be necessary that this
     surgery be considered against the “genuine therapeutic purpose” exception in
     section 76.

     Submissions There were 49 submissions that commented specifically on this
     aspect of the issues paper. Some submissions expressed the view that if the
     intersex person makes an informed decision to have corrective surgery, they
     should not be prohibited from doing so.

     Some submissions suggested that the law should provide guidance on what
     constitutes a genuine therapeutic purpose and that a decision on this in respect
     of an intersex child should not rest with parents or doctors alone.

     Focus groups The intersex interviewees were strongly of the opinion that
     legislation should be put in place to regulate ‘normalising’ surgery. They
     believed that surgery should not be carried out except in cases of genuine
     medical need, that is, where a life is at risk or the individual is suffering
     considerable pain.

     Intersex interviewees were strongly of the view that ‘normalising’ surgery
     which is undertaken without the consent of the individual concerned should
     not be condoned by the Crimes Act 1900. (Executive Summary – Appendix 2)

     The preference from one interviewee was for [legislation] to direct that an
     application must be made to the Family Court if the parents wish to have
     ‘normalising’ surgery undertaken on their child before the child is old enough
     to have a say. (page 28 – Appendix 2)




42
8.         Policy, programs and priorities
There are a number of Government policies and programs that affect lesbian, gay,
bisexual, transgender or intersex people in the ACT.

ACT Policing has Gay and Lesbian Liaison Officers to provide support and advice to
members of the public and to AFP personnel. Gay and Lesbian Liaison Officers are
trained to deal with gay, lesbian, bisexual, transgender and intersex issues with
sensitivity.

The Department of Education, Youth and Family Services has introduced a number of
initiatives that are aimed at promoting a school culture that is inclusive. Countering
homophobia is a particular outcome that is being pursued through specific training for
teachers, such as the “2 in every classroom” program run by Sexual Health and
Family Planning ACT, and through projects such as the distribution of posters and
booklets aimed at countering homophobia in schools.

The Government is also currently reviewing its policies and procedures for the
management of transgender and intersex persons detained at the Belconnen Remand
Centre, Symonston Temporary Remand Centre and Periodic Detention Centre.

As an employer, the ACT Government has an Equity and Diversity Framework. The
Equity and Diversity Framework sets directions for active future development of
Equal Employment Opportunity in the ACT Public Service from which agencies will
be able to build and develop their own policies and plans that allow all employees to
work to their full potential within an equal and diverse environment.

     Submissions There were 35 submissions that commented specifically on this
     aspect of the issues paper.

     There were 11 submissions that expressed the view that the Government did
     not need to do anything further. There were a number of submissions
     indicating opposition to “promotion of the homosexual lifestyle” and some
     submissions saw the current programs in schools as doing this. Other
     submissions expressed the view that the Government did not need to do
     anything further for what was considered to be a minority.

     A number of submissions made suggestions about areas where further action
     may be warranted:

     •   any legislative reforms should be backed up by a public education
         campaign to promote greater understanding and acceptance of different
         sexualities and gender diversity;
     •   examine the specific health needs of gay, lesbian, bisexual, transgender and
         intersex people, broader than just sexual health (the work of the Victorian
         Ministerial Advisory Committee on Gay and Lesbian Health was
         particularly recommended in this context);
     •   ongoing support for anti-homophobia and transphobia campaigns and
         support for students in schools;


                                                                                        43
     •   more programs targeted to reduce youth suicide;
     •   establish a central unit to coordinate and take responsibility for ensuring
         the needs of gay, lesbian, bisexual, transgender and intersex people are
         met;
     •   provide programs to increase level of understanding and combat
         discrimination in service provision among health professionals;
     •   provide information about rights for gay, lesbian, bisexual, transgender and
         intersex people;
     •   provide a community legal education coordinator; and
     •   provide programs to combat discrimination in service delivery areas.
     Focus groups Transgender and intersex people in particular expressed a need for
     greater education and public awareness programs around their issues. They
     pointed to health / medical professionals and police as specific targets of these
     programs. (Executive Summary – Appendix 2)




44
9.         Community participation
           Gay, Lesbian, Bisexual, Transgender and Intersex People in the
           ACT: an Issues Paper
The issues paper Gay, Lesbian, Bisexual, Transgender and Intersex People in the
ACT: an Issues Paper was tabled in the Legislative Assembly on 12 December 2002.
The purpose of the issues paper was to act as a platform for community consultation
on some of the more complex issues associated with this law reform process.

The consultation strategy for the issues paper was aimed at engaging as many
interested individuals as possible. Accordingly, press releases issued at the time the
paper was tabled in the Legislative Assembly in December 2002 included details
about how members of the public could obtain a copy of the paper. The paper was
concurrently published on the internet in line with the Government’s commitment to
ensure that Government information and services are available online.

Copies of the paper were mailed out to relevant stakeholders in late December 2002,
and pamphlets were distributed to ACT Government shopfronts and public libraries,
and to various community organisations. During January 2003, three separate public
notices appeared in The Canberra Times inviting comment on the issues paper.

In order to meet the Legislative Assembly’s timeframe for a report from Government
to be tabled by 1 May 2003, submissions on the issues paper were requested by
28 February 2003.

     Submissions Some submissions commented that the timeframe for consultation
     was too short, particularly in light of the bushfire crisis during January 2003.


           Focus groups
As part of the consultation strategy, the Department of Justice and Community Safety
engaged consultants O’Brien Rich Research Group to undertake a series of focus
groups. The focus groups were to be divided into specific issue groups for (i) gay,
lesbian and bisexual people; (ii) transgender people; and (iii) intersex people. The
focus groups were conducted during February 2003.

Despite considerable efforts to locate and attract intersex people to attend a focus
group this did not prove possible. Intersex support groups confirmed the difficulty in
attracting this group of people to a public forum such as a focus group. Invitations
were issued for intersex people to conduct telephone interviews with guaranteed
anonymity. Subsequently, two interviews with intersex people were conducted.

The consultant’s report on the focus groups is at Appendix 2. Sections of the report
are also extracted in the main body of this report.




                                                                                        45
          Consultation outcomes
     Submissions The issues paper generated a great deal of community interest and
     338 submissions were received.

     A number of submissions specifically welcomed the opportunity to provide
     comments.

     Focus groups Group participants welcomed the opportunity to have a say in the
     ACT government’s law reform process. The general view was that certain
     aspects of the law were discriminatory to gay, lesbian, bisexual, transgender
     and intersex people and that it was time to redress the issue and bring about
     equality under the law. Whilst treatment of partnerships under the law was
     considered to be very important, participants also emphasised the importance
     of the social and civic rights of all individuals.

     The view was expressed that it was very important for the states and territories
     to take the lead in legislative reform to bring about equality. Whilst some of
     the major issues that impact on the lives of these groups of people are under
     federal government jurisdiction (for example, superannuation), participants felt
     that by taking the first steps the ACT government, along with other states,
     could push the federal government to make important changes.

     Law reform was also important in sending a message to society that gay,
     lesbian, bisexual, transgender and intersex people are equal to all other
     members of society, and that it is not okay to discriminate against someone on
     the basis of their sexual orientation or gender identity. In separating these
     groups of people from the majority of society, the law was sending a message
     that they were not entitled to the same rights as everyone else.


          Legislation (Gay, Lesbian and Transgender) Amendment Act 2003

While the issues paper did not specifically invite comment in this respect, some
submissions commented on the definitions of “domestic partnership” and
“transgender person” included in the Legislation (Gay, Lesbian and Transgender)
Amendment Bill 2002 and the Discrimination Amendment Bill 2002 (No 2). Both of
the bills were passed on 13 March 2003 and are now Acts. A number of submissions
expressed opposition to these amendments going ahead before the second stage
amendments.

A large number of submissions expressed concern that the use of the inclusive term
“domestic partner” will mean that “spouse” and marriage itself as a legal and social
concept will be diminished. The Government’s view, as expressed during debate in
the Legislative Assembly, is that the new definition of domestic partner, by replacing
interpretative provisions such as “spouse includes a de facto spouse”, should actually
help to ensure that spouse and marriage retain their proper meaning.

Submissions also expressed concern that “living together” should not be an essential
element for the recognition of the existence of a domestic partnership. It was argued
that the inclusion of these words in the definition will only deliver formal equality



46
rather than substantive equality to same sex couples because a disproportionate
number of same sex couples live separately from their partners. The Government’s
view, as expressed during the debate in the Legislative Assembly, is that ACT
legislation does not currently recognise opposite sex couples who do not live together
as being de facto spouses, and the new definition treats a same sex couple who do not
live together in the same way. The purpose is to change the application of the law,
not the law itself.

In some circumstances a couple who do not share a common residence may still be
able to show, through other indicators, that they fall within the definition. The
expression “living together as a couple on a genuine domestic basis” has been
considered by courts and is well understood. It is clear that it must be considered as a
whole phrase and there are judgments that specifically reject the suggestion that it
should be dissected into component elements15.

Submissions also suggested that a “list of factors” approach, such as is used in NSW
and particularly Western Australia would be more appropriate than simply “living
together as a couple on a genuine domestic basis”. Government amendments during
debate on the legislation included a list of factors as an example for the definition.

There have been some submissions expressing concern with the definition of
transgender person that was included in the Legislation (Gay, Lesbian and
Transgender) Amendment Bill 2002. Some submissions were concerned that the
definition should not reinforce binary notions of gender, and that intersex people
should not be included as a transgender person. Submissions further expressed the
view that it is not always appropriate for a transgender person to be searched by a
person of the same sex as the sex with which the transgender person identifies. These
issues were all addressed by amendments made during the debate on the legislation in
the Legislative Assembly.

Other submissions argued that the definition of transgender person should rely on
self-identification rather than on an externally tested requirement such as “living as”
or “seeking to live as” a person of a particular gender. Another issue that was raised
in submissions was terminology. It was suggested that a term such as “sex or gender
variant” or “sex or gender diverse” be used rather than “transgender” as the term
transgender reinforces a binary view of gender. Other submissions expressed concern
that the term transgender person does not appropriately take account of transsexual
people.




15
     See Powell J in Roy v Sturgeon (1986) 11 NSWLR at 458


                                                                                     47
10.         Assembly motion
      Motion passed by the Legislative Assembly on 28 August 2002
      That this Assembly notes that the Government has undertaken a full review of
      all ACT legislation to identify provisions discriminatory to lesbian, gay,
      bisexual, transgender and intersex people and is compiling a report on the
      necessary steps to achieve equal status for lesbian, gay, bisexual, transgender
      and intersex people in the ACT and the Government will provide a copy of the
      report to the Assembly by 1 May 2003. The report will include but is not limited
      to:
      (1)    a full audit of ACT legislation detailing all instances of laws that
             discriminate against lesbians, gays, bisexuals, transgender and intersex
             people, including reference to:
             (a) legislation that discriminates in language or effect, including
                 directly, indirectly or by omission;
             (b) legislation that discriminates either in the definition, or the lack of
                 definition, of relationships including spouse, de facto spouse, family,
                 relative, kin, parent or guardian; and
             (c) the reproductive and parenting rights of the abovementioned people,
                 including adoption, artificial conception, substitute parenting and
                 eligibility to be recognised on a child’s birth certificate;
      (2)    an investigation of possible means to introduce registered relationships,
             or Civil Unions, under Territory Law;
      (3)    an investigation of the introduction of anti-vilification legislation to
             protect the above-mentioned groups, as well as persons infected with
             HIV/AIDS;
      (4)    an investigation of the issue of explicitly excluding the defence of
             provocation being available as a result of a non-violent homosexual
             advance;
      (5)    an investigation of the needs of transgender people in the ACT, including
             whether current legislative frameworks are adequately addressing their
             needs;
      (6)    an investigation of the issue of normalising surgery for intersex adults and
             children; including possible legislative protection to prevent unnecessary
             intervention;
      (7)    changes in Government policy, programs or priorities that would improve
             outcomes for lesbian, gay, bisexual, transgender or intersex people in the
             ACT; and
      (8)    The Assembly also notes that a necessary step to the achievement of
             equal status will be community participation in the process of identifying
             and removing discriminatory legislation and practices.




48
        1   Crimes Act 1900                                                              Agency    DJCS       Stage     N

  section   s.62 Incest and similar offences

provision   This provision sets out the various incest offences. For the purposes of determining what is an incest
            offence, the relationship between the two persons is expressed to be of lineal ancestor or lineal
            descendant, sister, half-sister, brother, half-brother or stepchild.

            Subsection 62(6) defines a stepchild as:
            stepchild, in relation to a person, means a person in relation to whom the firstmentioned person stands in
            loco parentis.


comment     The definition of stepchild as including a child in relation to whom a person stands in place of a parent
            would include both opposite sex and same sex partners to the parent of a child, even though these
            partners may not otherwise be a legally recognised parent.

            No changes are required.

 change?    No.




        2   Crimes Act 1900                                                              Agency    DJCS       Stage     N

  section   s.289 Abolition of presumption of marital coercion

provision   This provision abolishes any presumption of law that an offence committed by a wife in the presence of
            her husband is committed under the coercion of the husband.


comment     This section abolishes a presumption that arises out of the particular legal relationship of marriage. The
            presumption is not relevant to either de facto spouses or same sex partners.

            No changes are required.

 change?    No.




        3   Financial Relations Agreement Act 2000                                       Agency     DOT       Stage     N

  section   Schedule

provision   Appendix D to the Agreement in the Schedule refers to the principles for the States and Territories in
            establishing a First Home Owners Scheme. One of the principles is that an applicant's spouse or de
            facto spouse must be included on the application and that neither must have previously owned a home.

comment     This legislation consists of 4 sections and the schedule. Section 4 of the Act provides that it is the
            intention of the Australian Capital Territory to comply with, and give effect to, the Intergovernmental
            Agreement on the Reform of Commonwealth-State Financial Relations. That Agreement is included in
            the Act as a Schedule.

            The Agreement includes several Appendices, including Appendix D which sets out the agreed principles
            for establishing a First Home Owners Scheme in the States and Territories. This has been given effect
            in the ACT in the First Home Owner Grant Act 2000.

            While the Agreement refers to "de facto spouse", this has been given effect in the ACT First Home
            Owner Grant Act 2000 so as to include a same sex partner. As the Schedule simply restates the
            Agreement that has been signed, it cannot be amended. What is important is that the ACT has given
            effect to the principles in an inclusive manner.

 change?    No.




                                                                                                                            1
        4   Mental Health Act 1962                                                         Agency   DHCC       Stage      N

  section   s.4 Certificates of medical practitioners and conveyance to admission centre

provision   This provision provides a process for a doctor who has formed the opinion that the person is a mentally
            ill person and is a suitable case for admission to an admission centre to give a certificate in respect of
            that person.
            Section 4(4) provides that a doctor must not give a certificate in respect of a person where he or she is
            aware that another medical practitioner who is the doctor's employer or employee, or who is his or her
            partner, assistant, parent, brother, sister, child or spouse has examined the person and has given a
            certificate in respect of the person.
            Section 4(5) provides that a medical practitioner must not give a certificate in respect of a person who is
            his or her parent, brother, sister, child or spouse.

comment     The term "spouse" is not defined and hence it takes on its ordinary meaning which is a husband or wife
            of the person.

            The Act requires two doctors to certify that a person is suffering from a mental illness and is suitable for
            admission to an admission centre. The intention of section 4(4) is to ensure that the two doctors issuing
            the certificates are acting on their own independent opinion about a person's mental state.

            The intention of section 4(5) is to prevent a doctor from issuing a certificate in respect of a person with
            whom he or she has a personal relationship.

            These provisions are concerned with probity issues. While the provisions do not discriminate because
            they treat same sex partners in exactly the same way as opposite sex de facto spouses, it may
            nevertheless be appropriate to expand the class of persons who may not be engaged to include a
            domestic partner in order to give better effect to the probity intentions of the section.


 change?    This Act was repealed on 17 January 2003 by schedule 5 of the Statute Law Amendment Act 2002 (No
            2)




                                                                                                                              2
        5   Proceeds of Crime Act 1991                                                    Agency    DJCS       Stage     N

  section   s. 39 Search warrants in relation to tainted property

provision   This section provides for searches in relation to tainted property and includes the requirement:
            (11) A person shall not be searched under this section except by a police officer of the same sex.

            Section 41- Searches in emergencies - has a similar requirement:
            (5) Where a person is searched under this section, the search shall, if it is practicable in the
            circumstances to do so, be carried out by a police officer of the same sex.


comment     Under s.39 a police officer may obtain a warrant to search a person for tainted property. Among other
            things, a police officer acting in accordance with a warrant issued under the section may remove, or
            require a person to remove, any of the clothing that the person is wearing but only if the removal of the
            clothing is necessary and reasonable for an effective search of the person under the warrant. Section 41
            simply provides that the police officer may "search a person for the property".

            The requirement that a person so searched shall not be searched except by a police officer of the same
            sex would have an ambiguous but not necessarily discriminatory application to intersex detainees.
            There is the issue of what person is of "the opposite sex" to an intersex person.

            There is also the possibility of a discriminatory application to transgender persons, depending on how, as
            an administrative matter, the staff of the periodic detention centre decide on a person's sex. That is, is
            sex determined for these purposes on the basis of physical appearance or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            On the basis of this policy presumption, it would be appropriate for the legislation to contain a provision
            that recognises a person's self-identified sex for the purposes of a search. Such a provision is contained
            in section 17 of the Crimes (Forensic Procedures) Act 2000. This provision has the effect of applying the
            provisions of that Act in relation to sex as the person's self-identified sex. The provision also covers
            intersex persons under the definition of "transgender person" as a person who - "(c) is of indeterminate
            sex and identifies as a member of a particular sex by living as a member of that sex".

 change?    This Act will be repealed by the Confiscation of Criminal Assets Act 2003. That Act was notified on 27
            March 2003 but had not commenced at time of compiling this report.




        6   Agents Act 1968                                                               Agency    DJCS       Stage     1

  section   s 64 Qualification of auditors

provision   Provides that a licensed agent may not engage as an auditor various people including a person:
             (b) who is an employee, a partner, the spouse or de facto spouse, a child, a parent, or a brother or
            sister, of the licensed agent.

            Subsection (2) defines de facto spouse:
            de facto spouse, in relation to an agent, means a person of the opposite sex to the agent who lives with
            the agent as the husband or wife of the agent on a bona fide domestic basis although not married to the
            agent.


comment     This provision does not confer a benefit and as such, is not discriminatory in the sense that it treats a
            same sex partner unfavourably. The legislation is discriminatory in that it treats a same sex partner
            differently to an opposite sex partner.

            The intention of the section is to prohibit a licensed agent from engaging as an auditor a person where
            that person may have a potential conflict of interest because of their relationship to the licensed agent.

            It would be appropriate to expand the class of persons who may not be engaged to include a same sex
            partner to give better effect to the intention of the section.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                             3
        7   Bail Act 1992                                                                 Agency    DJCS      Stage   1

  section   s.3 Interpretation

provision   Definition: "de facto spouse in relation to a person, means a person of the opposite sex to the
            firstmentioned person who is living with the firstmentioned person as that person's husband or wife
            although not legally married to the firstmentioned person".

            De facto spouse is used in the definition of :
            "relative" - para (b) of the definition provides that a relative includes someone who would have been a
            relative if the original person had been legally married to the original person's de facto spouse; and
            "spouse" - includes a de facto spouse and a former de facto spouse.

comment     The particular relevance of the definitions of spouse and de facto spouse for the purposes of the Act is in
            the regard that is had to a "relevant person".

            The definition of "relevant person" includes a spouse, a relative, and also someone who normally lives,
            or normally lived, in the same household as the original person (other than as a tenant or boarder). A
            same sex partner would be encompassed within this definition. The definition of relevant person is used
            in establishing who is a protected person for the purposes of section 8A of the Act.

            Section 8A requires that an authorised officer must not grant bail to a person accused of a domestic
            violence offence unless satisfied that the accused poses no danger to a protected person during the
            period of bail.

            While the fact that the definition of de facto spouse excludes a same sex partner is discriminatory in
            form, the overall effect in terms of protection for a same sex partner in the making of bail decisions is not
            discriminatory in substance as such a person would fall within the definition of a "relevant person".

            Notwithstanding that the end effect is that a same sex partner would be regarded as a "relevant person",
            there is no reason why such a person should not be included in the definition in the same way that a de
            facto spouse is included. The message that the current definition sends is discriminatory, even if the
            provision is not.

            Where the Act is discriminatory is in its treatment of the relatives of a same sex partner. For example, a
            child of a de facto spouse of the accused would be a "relevant person" but a child of a same sex partner
            would not be a "relevant person". Similarly, a parent of a de facto spouse would be a "relative" for the
            purposes of the Act, but a parent of a same sex partner would not be a "relative". While, as noted
            above, the Act does not have a discriminatory application in substance as against a same sex partner, it
            does have a discriminatory application as against the relatives of a same sex partner.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            4
        8   Casino Control Act 1988                                                      Agency     DOT      Stage   1

  section   s. 108 Restrictions affecting search of persons

provision   Section 108 (3) provides that a person shall not be searched under this division except by a person of
            the same sex.
            There is the possibility of an ambiguous and possibly discriminatory application of this provision to a
comment
            transgender person or an intersex person, depending on how, as an administrative matter, the inspector
            or police officer who is conducting the search decides on a person's sex. That is, is sex determined for
            these purposes on the basis of physical characteristics or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




        9   Children and Young People Act 1999                                           Agency   DEYFS Stage 1

  section   s.400 Rules for conduct of personal search

provision   This provision requires that where a child or young person is to be searched under section 399 of the
            Act, then the search:
            (i) must be conducted by someone who is of the same sex as the child or young person; and
            (ii) may not be conducted in the presence or view of someone who is of the opposite sex to the child or
            young person being searched.

comment     There is the possibility of an ambiguous and possibly discriminatory application of this provision to child
            or young person who is a transgender person or an intersex person, depending on how, as an
            administrative matter, the person who is conducting the search decides on a child or young person's sex.
            That is, is sex determined for these purposes on the basis of physical characteristics or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                          5
       10   Civil Law (Wrongs) Act 2002                                                    Agency     DJCS      Stage    1

  section   s. 20 Definitions for pt 3.1

provision   The Civil Law (Wrongs) Act 2002, repeals the Compensation (Fatal Injuries) Act 1968. Section 20 of the
            Act defines a "member" of a deceased person's family, and includes, among others:
            (b) a person (whether of the same sex or a different sex) who, immediately before the death, was living
            in a de facto marriage relationship with the person;

            Section 3 of the Compensation (Fatal Injuries) Act contains a similar but more restrictive definition which
            includes, among others:
            (h) a person who, although not legally married to the deceased person, was immediately before the
            death of the deceased person living with the deceased person as wife or husband, as the case may be,
            on a permanent and bona fide domestic basis.


comment     The definition in section 3 of the Compensation (Fatal Injuries) Act is discriminatory in that it does not
            recognise a same sex partner as being a member of a deceased person's family. A same sex partner
            would not be able to claim any damages for the wrongful death of their partner, where an opposite sex
            partner would be able to claim damages under the Act.

            This discriminatory application is addressed in new section 20 of the Civil Law (Wrongs) Act. While the
            intention of the Act is clearly to remove the discriminatory application of the definition, the use of the term
            "de facto marriage relationship" in the context of a same sex relationship is inherently contradictory. For
            the purposes of consistency and to avoid defining both de facto relationships and same sex relationships
            by reference to something they are not (ie. marriage), it would be preferable if this provision was
            amended.

            The definition in section 20 of the Bill is also used for the purposes of section 13 - Damages in surviving
            cause of action. This provision is carried over from section 5 of the Law Reform (Miscellaneous
            Provisions) Act 1955, and provides that damages payable in an action for unlawful death may include
            compensation for any reasonable funeral or medical expenses payable by the estate of the deceased
            person. These may take into account the religious and cultural circumstances of the deceased person
            and members of his or her family. Under the definition used in the Act, a same sex partner is regarded
            as a family member.

            The definition is also used for consequential amendments to section 122 of the Public Health Act 1997.
            Section 122 provides for compensation to be paid in certain circumstances to a family member of a
            person who has died as a result of actions taken under part 7 of that Act in a public health emergency.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                              6
       11   Civil Law (Wrongs) Act 2002                                                  Agency    DJCS      Stage    1

  section   s. 29 Definitions for pt 3.2

provision   The Civil Law (Wrongs) Act 2002, repeals the Law Reform (Miscellaneous Provisions) Act 1955. Section
            29 of the Act defines a "family member" of a person and includes, among others:
            (b) a person (whether of the same sex or a different sex) who, immediately before the death, was living
            in a de facto marriage relationship with the person;

            Section 22 of the Law Reform (Miscellaneous Provisions) Act contains a similar definition:
            member of the family, in relation to a person, means the husband, wife, parent, child, brother, sister,
            half-brother or half-sister of that person.


comment     Section 22 of the Law Reform (Miscellaneous Provisions) Act defines "family member" for the purposes
            of part 7 of the Act. Part 7 allows the courts to award damages in specific circumstances for nervous
            shock in the absence of bodily injury, and includes nervous shock where another person has been killed,
            injured or put in peril.

            Under part 7 of that Act, the court may award damages to:
            (a) a parent, husband or wife of the person killed, injured or put in peril; and
            (b) another family member of the person killed, injured or put in peril who witnesses the incident.

            The Civil Law (Wrongs) Act expands the definition of a family member to include both an opposite sex,
            and a same sex partner. While the intention of the Bill is clearly to remove the discriminatory application
            of the definition, the use of the term "de facto marriage relationship" in the context of a same sex
            relationship is inherently contradictory. For the purposes of consistency and to avoid defining both de
            facto relationships and same sex relationships by reference to something they are not (ie. marriage), it
            would be preferable if this provision was amended.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                          7
       12   Cooperatives Act 2002                                                         Agency   DJCS      Stage     1

  section   Dictionary

provision   Definition: "Spouse" is defined in the dictionary to include a de facto spouse.

            De facto spouse is not defined and therefore takes on its ordinary meaning of a person who lives with
comment
            another as husband or wife, although not legally married to that person. The definition of spouse has
            implications for several sections.

            Section 155 - Notice of resolution for bonus share issue - requires that notice of the meeting or postal
            ballot at which a resolution is to be proposed as a special resolution for the purpose of approving a
            bonus share issue must be accompanied by:
            (d) particulars of acquisitions of shares in the cooperative made during the 3 years immediately before
            the date of the notice by or on behalf of each of its directors and his or her spouse and the father,
            mother, children, brothers and sisters of each director and spouse.

            Section 232 - Financial accommodation to directors and associates - provides that a cooperative cannot
            provide financial accommodation to a director, or to a person the cooperative knows or should
            reasonably know is an associate of a director, except in limited circumstances. An associate is defined
            and includes reference to a spouse of a director.

            Section 276 - Acquisition and disposal of assets - similarly requires special resolution of the cooperative
            passed by a special postal ballot for particular transactions related to a director or employee or the
            spouse of a director or employee.

            These provisions do not confer a benefit and as such, are not discriminatory in the sense that they treat
            a same sex partner unfavourably. The legislation is discriminatory in that it treats a same sex partner
            differently to an opposite sex partner.

            These sections are all concerned with probity. Notwithstanding that the definition does not have an
            unfavourable discriminatory effect, it would be appropriate to amend the provision to include a same sex
            partner in order to give better effect to the intention of the relevant sections - ie. to guard against
            potential conflict of interest in dealing with the assets of the cooperative.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                           8
       13   Coroners Act 1997                                                              Agency    DJCS      Stage   1

  section   s. 3 Interpretation for Act

provision   Definition: "spouse", in relation to a deceased person, includes a person who, at the time of death of the
            deceased, was-
            (a) in a de facto marriage relationship with the deceased; or
            (b) in a relationship (whether or not with a person of the same or the opposite sex) in which 1 provided
            personal or financial commitment and support of a domestic nature for the material benefit of the other.

            This definition is used to determine who is part of the deceased's "immediate family".

comment     The definition of immediate family is used in a number of sections of the Act. A person who is a
            member of a deceased's immediate family has particular rights to considerations and to be notified of
            matters under the Act.

            The current definition of "spouse" would be broad enough to cover a same sex partner of a deceased
            person, as they would fall within paragraph (b) of the definition. Paragraph (b) would seem to be based
            on the definition of "domestic relationship" in the Domestic Relationships Act 1994, which is much
            broader than the term "domestic partner" which is contemplated as a general interpretative provision in
            the Legislation Act 2001.

            The fact that the provision is included in the definition of "spouse" indicates an intention to merely include
            a same sex partner equivalent of a de facto spouse. It would be stretching the general concept of
            "spouse" to include the broader types of relationships that fall within the language used in paragraph (b)
            of the definition of spouse. Paragraph (b) would include, for example, a person who visits an elderly
            aunt two afternoons a week to shop and clean the house.

            This view is supported by the definition of immediate family which is limited to :
            (a) a person who was the spouse of the deceased, or a parent, grandparent, child, brother or sister, or
            guardian or ward, of the deceased; and
            (b) if the deceased was an Aboriginal person or Torres Strait Islander - a person who, in accordance
            with the traditions and customs of the Aboriginal or Torres Strait Island community of which the
            deceased was a member, had the responsibility for, or an interest in, the welfare of the deceased.

            For the purposes of consistency, the provision should be amended to either "domestic relationship" or
            "domestic partner". Given the apparent intention of the section, the term "domestic partner" would seem
            to be the most appropriate term.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                             9
       14   Crimes Act 1900                                                                Agency    DJCS      Stage   1

  section   Dictionary

provision   Definition: "de facto spouse" in relation to a person, means a person of the opposite sex to the
            firstmentioned person who is living with the firstmentioned person as that person's husband or wife
            although not legally married to the firstmentioned person.

            De facto spouse is used in the definition of :
            "relative" - para (b) of the definition provides that a relative includes someone who would have been a
            relative if the original person had been legally married to the original person's de facto spouse;
            "relevant person" - includes a spouse; and
            "spouse" - includes a de facto spouse and a former de facto spouse.

comment     The particular relevance of the definition for the purposes of the Act is mainly in the regard that is had to
            a "relevant person".

            The definition of "relevant person" includes a spouse, a relative, and also someone who normally lives,
            or normally lived, in the same household as the original person (other than as a tenant or boarder). A
            same sex partner would be encompassed within this definition as a person who normally lives in the
            same household as the original person. The definition of relevant person is used in establishing what is
            a domestic violence offence for the purposes of the Act. A police officer may arrest a person reasonably
            suspected of committing a domestic violence offence without a warrant (section 122).

            While the fact that the definition of de facto spouse excludes a same sex partner is discriminatory in
            form, the overall effect in terms of protection for a same sex partner under section 122 is not
            discriminatory in substance as such a person would fall within the definition of a "relevant person" for the
            purposes of a domestic violence offence. Notwithstanding that the end effect is that a same sex partner
            would be regarded as a "relevant person", there is no reason why such a person should not be included
            in the definition in the same way that a de facto spouse is included. The message that the current
            definition sends is discriminatory, even if the provision is not.

            Where the Act is discriminatory is in its treatment of the relatives of a same sex partner. For example, a
            child of a de facto spouse of the accused would be a "relevant person" but a child of a same sex partner
            would not be a "relevant person". Similarly, a parent of a de facto spouse would be a "relative" for the
            purposes of the Act, but a parent of a same sex partner would not be a "relative".

            "Spouse" is used in section 153 - Property of spouses. This usage has a contrary intention to the
            dictionary meaning. This section specifies the manner in which divisions 6.2 and 6.3 (which deal with
            theft and related offences and criminal damage to property) apply in relation to the parties to a marriage.
            This section is only necessary because of the particular legal presumptions that arise from marriage and
            the intention is clear that "spouse" in this instance does not have the extended dictionary meaning. No
            change is required in this context.

            "Spouse" is also used in section 397 - Apprehended violence or injury-recognisance to keep the peace
            etc. It is appropriate that this provision should offer the same protection to a same sex partner as to an
            opposite sex partner.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            10
       15   Crimes Act 1900                                                              Agency    DJCS      Stage    1

  section   s.228 Rules for conduct of strip search

provision   Section 228 sets out rules for conducting a strip search of a person. The search:
            (i) must be conducted by someone who is of the same sex as the person; and
            (ii) may not be conducted in the presence or view of someone who is of the opposite sex to the person
            being searched.

            Section 238 - Examination - which provides rules for an examination by a medical practitioner of the
            body of a person charged, is slightly different. A medical practitioner need not be of the same sex as the
            person, but any person assisting or present must be of the same sex as the person being examined
            where the examination includes the external examination of the genital or anal area, the buttocks, or, for
            a female, the breasts.

            Section 240 - Conduct of ordinary searches and frisk searches - provides that an ordinary search or a
            frisk search of a person under division 10.6 must, if practicable, be conducted by a person of the same
            sex as the person being searched.

            Section 207 - Stopping, searching and detaining people - requires a frisk search of a person under the
            section to be conducted by a person of the same sex as the person being searched.

comment     There is the possibility of an ambiguous and possibly discriminatory application of this provision to a
            transgender person or an intersex person, depending on how, as an administrative matter, the police
            officer who is conducting the search decides on a person's sex. That is, is sex determined for these
            purposes on the basis of physical characteristics or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                          11
       16   Crimes (Forensic Procedures) Act 2000                                        Agency    DJCS      Stage   1

  section   s. 17 Transgender persons

provision   This provision provides for transgender persons as follows:
            (1) A transgender person is a person who-
             (a) identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite
            sex; or
             (b) has identified as a member of the opposite sex by living as a member of the opposite sex; or
             (c) is of indeterminate sex and identifies as a member of a particular sex by living as a member of that
            sex;
            whether or not the person is a recognised transgender person.
            (2) A transgender person includes a person who is thought of as a transgender person, whether or not
            the person is a recognised transgender person.
            (3) A recognised transgender person is a person the record of whose sex is altered under the Births,
            Deaths and Marriages Registration Act 1997, part 4 or the corresponding provisions of a law of a State
            or another Territory.
            (4) In this part (other than subsection (1)), a reference-
             (a) to a member of the opposite sex of a person means, if the person is a transgender person, a
            member of the opposite sex to the sex with which the transgender person identifies; and
             (b) to a member of the same sex as a person means, if the person is a transgender person, a member
            of the same sex as the sex with which the transgender person identifies.



comment     This provision contains a comprehensive description of how to manage gender issues in conducting
            forensic searches.

            This provision should be considered as a model provision for personal search provisions in other Acts.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       17   Custodial Escorts Regulations 2002                                           Agency    DJCS      Stage   1

  section   s.6 Rules for conduct of searches

provision   This regulation sets out rules for an escort to conduct a search of a person in the escort's custody. This
            includes the requirement that the search:
            (i) must not be conducted in the presence or view of a person of the opposite sex to the person being
            searched; and
            (ii) must be conducted by an escort of the same sex as the person being searched.


comment     There is the possibility of an ambiguous and possibly discriminatory application of this provision to a
            transgender person or an intersex person, depending on how, as an administrative matter, the escort
            who is conducting the search decides on a person's sex. That is, is sex determined for these purposes
            on the basis of physical characteristics or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                          12
       18   Dangerous Goods Act 1975                                                      Agency     CMD       Stage   1

  section   s.42 Search warrant

provision   Section 42 requires that a female who is searched pursuant to a search warrant issued under the section
            may only be searched by a female inspector or police officer.

            Section 43 - Search powers - contains the same requirement for a female to be searched by a female
            police officer. Under this section a police officer who suspects on reasonable grounds that a person is
            carrying on his or her person an explosive in contravention of the Act may detain and search that person.

comment     This is a very basic formulation of the search power. A more usual provision would be that the police
            officer or inspector must of the same sex as the person being searched. It would be preferable for this
            formulation to be used for the purposes of consistency with similar search powers in other legislation.

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       19   Discrimination Act 1991                                                       Agency    DJCS       Stage   1

  section   s.4 Interpretation for Act

provision   Definition: "de facto spouse", in relation to a person, means a person of the opposite sex to the
            firstmentioned person who lives with the firstmentioned person as the husband or wife of that person on
            a bona fide domestic basis although not legally married to that person.

            De facto spouse is used in the definition of :
            "near relative" - para (b) of the definition provides that a near relative includes a spouse or de facto
            spouse of the person, or of the relatives that are specifically mentioned; and
            "marital status" - includes the status of being the de facto spouse of another person

comment     "Marital status" is one of the protected attributes under the Act.

            The effect of the treatment of "de facto spouse" under the Act is that it is unlawful to discriminate against
            a person on the grounds that they are in a de facto relationship, but it is not unlawful to discriminate
            against a person on the grounds that they are in a same sex relationship.

            While it seems likely that discrimination against a person on the basis of their same sex relationship
            would usually also be discrimination on the grounds of sexuality, this may not necessarily be the case.
            There is no reason why the Act should not protect people against discrimination on the basis that they
            are in a same sex relationship in the same way as it protects people in an opposite sex relationship.

            The definition of "marital status" is also relevant to the exceptions in section 35 - Employment of couple,
            and section 39 - Accommodation provided for employees, contract workers or students.

            The definition of "near relative" is relevant to the exception in section 26 - Domestic accommodation etc.

            The inclusion of same sex couples on the same basis as a de facto spouse will expand these exceptions
            under the Act, but in a beneficial way.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 and Discrimination
            Amendment Act 2003.




                                                                                                                            13
       20   Domestic Relationships Act 1994                                               Agency    DJCS      Stage     1

  section   s.3 Interpretation for Act

provision   Definition: "domestic relationship" means a personal relationship (other than a legal marriage) between
            2 adults in which one provides personal or financial commitment and support of a domestic nature for the
            material benefit of the other, and includes a de facto marriage.

            De facto marriage is not defined.

comment     This Act does not discriminate against persons in a same sex relationship. Such persons are clearly
            encompassed by the definition of "domestic relationship". The issue is the degree to which the domestic
            relationship definition is applied across other legislation.

            The definition of domestic relationship encompasses a wide range of relationships, of which a de facto
            marriage and a same sex relationship are a subset. A domestic relationship includes, for example, an
            adult child providing care to an elderly parent, or two brothers living together and sharing expenditure.

            This latter example, notwithstanding that the two persons are of the same sex, is not a type of
            relationship that would be equated with a de facto marriage. The same sex relationships that are
            intended to be covered by this exercise are a subset of domestic relationships, where two people live
            together as a couple on a genuine domestic basis. This particular formulation is preferable to "living
            together in a marriage like relationship" because of the inherent contradictions in defining a relationship
            by something that it is not - ie. marriage.

            The approach that is proposed is to create a new definition "domestic partnership", as a subset of
            "domestic relationship". A domestic partnership would be defined along the lines of two people, whether
            of the same or different sex, living together as a couple on a genuine domestic basis, who are not legally
            married. A "domestic partner" would be accordingly defined along the lines of "domestic partner, in
            relation to a person, means a person, whether or not of the same or different sex to the firstmentioned
            person, who lives with the firstmentioned person as a member of a couple on a genuine domestic basis
            although not legally married to that person."

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       21   Drugs of Dependence Act 1989                                                  Agency   DHCC       Stage     1

  section   s.189   Clothing and body searches

provision   This section requires that where a police officer searches a person's clothing under the division, then the
            police officer must be of the same sex as the person whose clothing is being searched.


comment     There is the possibility of an ambiguous and possibly discriminatory application of this provision to a
            transgender person or an intersex person, depending on how, as an administrative matter, the police
            officer who is conducting the search decides on a person's sex. That is, is sex determined for these
            purposes on the basis of physical characteristics or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            14
       22   Firearms Act 1996                                                               Agency    DJCS      Stage   1

  section   s.75 Search of persons, vehicles, vessels - without warrant

provision   Section 75 requires that where a person is searched under the section, the search must be carried out
            by a police officer of the same sex.
            This provision allows a police officer who has reasonable grounds for believing that a firearm connected
comment
            with an offence may be found in the possession of a person to stop and search that person and also
            search the clothing of that person.

            There is the possibility of an ambiguous and possibly discriminatory application of this provision to a
            transgender person or an intersex person, depending on how, as an administrative matter, the police
            officer who is conducting the search decides on a person's sex. That is, is sex determined for these
            purposes on the basis of physical characteristics or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       23   First Home Owner Grant Act 2000                                                 Agency    DOT       Stage   1

  section   s.6 Partner of applicant

provision   This section establishes who is the partner of an applicant for the purposes of the Act. A person is a
            partner if-
            (a) they are legally married; or
            (b) they are parties to a de facto relationship.

            A de facto relationship is defined in subsection (3) as the relationship between 2 people, whether of the
            opposite or same sex, living together as a couple on a genuine domestic basis.

comment     The eligibility criteria for first home owner grants under the Act include consideration of whether the
            applicant, or the applicant's partner, has previously held an interest in land, or previously received a first
            home owner's grant.

            This definition of de facto relationship for the purposes of determining who is a partner already takes
            account of same sex relationships. The definition of de facto relationship encompasses all of the
            elements of the proposed new term "domestic partner" which is proposed for inclusion in the Legislation
            Act 2001. For the purposes of consistency, this Act should also refer to "domestic partner". This
            amendment will make not make any substantive change to the Act.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                             15
       24   Gambling and Racing Control Act 1999                                           Agency     DOT       Stage     1

  section   Schedule 1 - Appointment and terms of office of members of commission

provision   Item 2 - Appointment of ordinary members - provides that a person is not eligible to be appointed as an
            ordinary member if the person or the person's spouse has an interest in a business subject to a gaming
            law.

comment     The term "spouse" is not defined and hence it takes on its ordinary meaning which is a husband or wife
            of the person. The provision is not discriminatory in that it does not exclude a person whose same sex
            partner has an interest in a gaming business from being eligible for appointment to the commission in
            exactly the same way as it also does not exclude from eligibility a person who has a de facto spouse with
            an interest in a gaming business.

            The intention of the provision is to avoid a potential conflict of interest in members of the commission.
            While the provision is not discriminatory against same sex couples, it would be appropriate to expand the
            class of persons who may not be engaged to include a domestic partner to give better effect to the
            intention of the section.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       25   Guardianship and Management of Property Act 1991                               Agency     DJCS      Stage     1

  section   Dictionary

provision   Definition: "spouse", in relation to a person, includes a person of the opposite sex to the person who is
            not legally married to the person but who lives with the person on a bona fide domestic basis.

            The term "spouse" is used in two sections of the Act:

            Section 10 - Considerations affecting appointment - sets out the considerations of the tribunal in
            appointing a guardian or manager for a person under the Act. Among those considerations is potential
            conflict of interest. Section 10(5) clarifies that the interests and duties of the spouse or a relative of a
            person shall not be taken to be likely to conflict with the interests of the person merely because of the
            fact of being the spouse or relative.

            Section 35 - Notice of inquiry - requires the presidential member of the tribunal to give written notice of
            an inquiry concerning a person to particular people, including the spouse of the person.

comment     The effect of the definition of spouse in its application to section 35 of the Act is that the presidential
            member of the tribunal is not required to give written notice of an inquiry to a same sex partner of a
            person in respect of whom the tribunal is to hold an inquiry. This is a clearly discriminatory outcome, as
            such a person would have just as much interest in the outcome of an inquiry as an opposite sex de facto
            partner.

            The effect of the definition of spouse in its application to section 10 of the Act is less clear. Section 10(5)
            is essentially a clarifying provision, and it would be open to the tribunal to conclude that the interests of a
            same sex partner of a person are not likely to conflict with the interests of the person merely because of
            their relationship. While the outcome will not necessarily be discriminatory, there is no reason for a
            same sex partner not be included in this clarifying provision.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                              16
       26   Health Records (Privacy and Access) Act 1997                                   Agency   DHCC       Stage   1

  section   s.4 Definitions for Act

provision   Definition: "immediate family member" includes, in paragraph (a)(ii) of the defintion, "a spouse or de
            facto spouse of the consumer".

            This definition is used in Principle 10(5) so that where there is an emergency and a consumer is unable
            to give or withhold consent to the disclosure of personal health information, the treating health service
            provider may discuss relevant personal health information with an immediate family member of the
            consumer to the extent that it is reasonable and necessary to do so for the proper treatment of the
            consumer.

comment     "Spouse" and "de facto spouse" are not defined and thus assume their common law meaning, which
            provides for a heterosexual relationship.

            A close friend of the consumer who is a member of the same household as the consumer is also
            included as an "immediate family member" under paragraph (b) of the definition. A same sex partner
            would be encompassed within this definition.

            The result is that while the fact that the definition of immediate family member is discriminatory in form in
            that a same sex partner is only recognised as "a close friend", the overall effect is not discriminatory in
            substance because a medical practitioner is still permitted to disclose a person's health records to such a
            person.

            Notwithstanding that the end effect is that a same sex partner would be regarded as a "relevant person",
            there is no reason why such a person should not be recognised in the legislation in the same way that a
            de facto spouse is recognised. The message that the current definition sends is discriminatory, even if
            the overall effect is not.

            The intention of this legislation is to allow the treating health service provider to disclose an incompetent
            patient's medical details with those most intimately involved with his or her welfare. This intention is
            enhanced by the proposed amendment.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            17
       27   Land (Planning and Environment) Act 1991                                       Agency    DUS       Stage   1

  section   s. 186D Dealings with rural leases

provision   This section restricts dealings in certain rural leases to dealings that have the written consent of the
            Executive. Under section 186D(5), the Executive must give consent if the person taking title under the
            dealing is the lessee's partner or child.

            Section 186D(7) contains definitions for the section:
            "child", in relation to a lessee, includes a son or daughter of the lessee's partner.

            "de facto relationship" means the relationship between 2 people (whether of a different or the same sex)
            who, although not married to each other, live in a relationship like the relationship between a married
            couple.

            "partner", in relation to a lessee, means the lessee's spouse or a person with whom the lessee is in a de
            facto relationship.


comment     This provision does not discriminate against same sex relationships as the definition of "de facto
            relationship" is clearly intended to encompass both opposite sex and same sex relationships.

            While the intention of the section is non-discriminatory, the use of the expression "like the relationship
            between a married couple" in the context of a same sex relationship or de facto relationship is inherently
            contradictory. For the purposes of consistency and to avoid defining both de facto relationships and
            same sex relationships by reference to something they are not (ie. marriage), it would be preferable if
            this provision was amended.

            The definition of child in this section is also non-discriminatory. The inclusion of the reference to a son or
            daughter of the lessee's partner means that notwithstanding that a same sex partner may not be able to
            be a legally recognised parent, the dealing would be treated as if they were the legally recognised
            parent.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       28   Land Titles Act 1925                                                           Agency    DJCS      Stage   1

  section   s.79 Proprietor may vest an estate jointly in self and others without limiting any use

provision   Under this section, the registered proprietor of land or an interest in land may
            (i) transfer the land or interest or part of it to his or her spouse
            (ii) make the transfer to himself or herself jointly with any other person, or
            (iii) create or execute any powers of appointment, or
            (iv) limit any estates whether by remainder or otherwise,
            without limiting any use or without any reassignment being executed.

comment     This section provides a benefit to married couples, who, because of their relationship, may be interested
            in sharing property and transferring title to each other.

            The term "spouse" is not defined and hence it takes on its ordinary meaning which is a husband or wife
            of the person. This section does not apply to de facto relationships and does not apply to same sex
            relationships, notwithstanding that the parties to these types of relationships may wish to make similar
            arrangements with respect to transfer of title on property. There is no policy reason why parties in these
            types of relationships should not have the same benefit under the law, particularly as other ACT
            legislation (e. the Duties Act 1999) treats property transfers between same sex partners in the same way
            as property transfers between married couples.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                             18
       29   Legal Practitioners Act 1970                                                  Agency    DJCS       Stage    1

  section   s.102 Auditors' qualifications

provision   This provision limits the class of people who can be engaged to conduct an audit of trust moneys and
            other moneys controlled by a solicitor.

            A natural person may not be engaged to conduct an audit if he or she is the spouse or de facto spouse
            of the solicitor by whom the records are kept.

            Similarly, a firm of auditors may not be engaged to conduct an audit where a member of the firm is the
            spouse of the solicitor by whom the records are kept.

comment     This provision is interesting in that while the "spouse or de facto spouse" exclusion is used in respect of
            a natural person, only "spouse" is used as an exclusion in respect of a firm of auditors. There is no
            apparent reason for the different approach.

            This provision does not confer a benefit and as such, is not discriminatory in the sense that it treats a
            same sex partner unfavourably. The legislation is discriminatory in that it treats a same sex partner
            differently to an opposite sex partner.

            The intention of the section is to prohibit a solicitor from engaging as an auditor a person who may have
            a potential conflict of interest because of their relationship to the solicitor.

            It would be appropriate to both expand the class of persons who may not be engaged to include a same
            sex partner to give better effect to the intention of the section. This should apply to both natural persons
            and a firm of auditors.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       30   Legal Practitioners Act 1970                                                  Agency    DJCS       Stage    1

  section   s.113 Definitions for div 11.7

provision   The Law Society can appoint a person to investigate the affairs of a solicitor. The affairs of a solicitor
            include records and accounts kept by or on behalf of an associate of the solicitor. An associate includes
            a person who is in a prescribed relationship to a solicitor or other associate of the solicitor if the
            relationship is that of-
            (a) a spouse or de facto spouse; or
            (b) a child, grandchild, brother, sister, parent or grandparent (whether derived through a spouse or de
            facto spouse or otherwise); or
            (c) a kind prescribed by the regulations for this subsection.

comment     This section does not apply to those in a same sex relationship, and thus the affairs of a solicitor relating
            to a same sex partner are not covered by the section. There appears no reason not to apply these
            provisions to same sex relationships as the partners are in a similarly close relationship to that of a
            married or de facto couple. The same probity considerations would apply regardless of whether the
            solicitor is in a relationship with a person of the same sex or of the opposite sex.

            The definition of "associate" is also used in Part 12A - Mortgage practices and managed investment
            schemes. This part is also concerned with probity and there is no reason why same sex partners should
            not be included in the definition for these purposes.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            19
       31   Legislation Act 2001                                                          Agency      DJCS   Stage     1

  section   Dictionary

provision   None at present.

            It is proposed to create two new definitions for inclusion in the Legislation Act 2001.
comment
            A "domestic partnership" would be defined as two people, whether of the same or different sex, living
            together as a couple on a genuine domestic basis, and includes a spouse.

            A "domestic partner" would be defined, in relation to a person, as meaning a person whether of the
            same or different sex to the firstmentioned person, who lives with the firstmentioned person as a
            member of a couple on a genuine domestic basis.

            These definitions are proposed for inclusion in the Legislation Act 2001 for the purpose of creating
            consistent terms that may be used in all other ACT legislation.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       32   Liquor Act 1975                                                               Agency      DJCS   Stage     1

  section   s.151 Definitions for div 10.2

provision   Definition: "spouse", of a person, includes a person living with the person as the person's husband or
            wife although not legally married to the person.

            This definition is used in the definition of "responsible adult" as follows:
            "responsible adult", for another person, means an adult who-
            (a) is a parent, step-parent, guardian, person acting in place of a parent, carer or spouse of the other
            person; and
            (b) could reasonably be expected to exercise responsible supervision of the other person.

comment     Division 10.2 of the Act is concerned with under-age drinking. A person under the age of 18 is not
            permitted in a bar room on licensed premises except in the care of a responsible adult. The Act creates
            offences for both the person (section 56) and the licensee (section 57).

            The effect of the definition of "spouse" is discriminatory because a person under the age of 18 may enter
            a bar-room in the care of an opposite sex partner who is an adult, but not in the care of a same sex
            partner who is an adult.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                           20
       33   Mental Health (Treatment and Care) Act 1994                                    Agency   DHCC     Stage      1

  section   s.4 Definitions for Act

provision   Definition: "spouse", in relation to a person, includes a person who is not legally married to the person
            but who lives with the person on a bona fide domestic basis.

            This definition is used in the definition of "relative" which includes a spouse.

comment     The definition of spouse relies on common law precedent and does not stipulate the sex of the couple,
            but presumes it is a heterosexual relationship.

            Under section 19 - Contact with other persons - a person in a mental health facility must be given
            adequate opportunity to contact a relative or friend.

            Under section 42 - Notification of certain persons about detention - the person in charge of a mental
            health facility where a person has been involuntarily detained must ensure that the person has adequate
            opportunity to notify a relative or friend.

            The purpose of these sections is to provide access to those who have the closest relationship with the
            person. This should include a same sex partner. While the inclusion of "or friend" in the current
            provisions would allow a person to contact a same sex partner, such a partner is treated differently under
            the legislation. The legislation is discriminatory in form.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       34   Periodic Detention Act 1995                                                    Agency   DJCS     Stage      1

  section   s. 50 Clothing and body searches

provision   Requires that a body search of a detainee must be carried out by a person of the same sex as the
            detainee and must not be conducted in the presence or view of a person who is of the opposite sex to
            the detainee. The section also specifies circumstances in which there may be a departure from these
            requirements.

comment     There is the possibility of an ambiguous and possibly discriminatory application of this provision to a
            transgender person or an intersex person, depending on how, as an administrative matter, the staff of
            the periodic detention centre conducting the search decide on a person's sex. That is, is sex determined
            for these purposes on the basis of physical characteristics or gender identity?

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            21
       35   Periodic Detention Regulations 1995                                           Agency    DJCS      Stage    1

  section   Schedule 2 - (1) Procedure for obtaining a sample of urine

provision   This procedure provides that the test be carried out by an officer who is of the same sex as the detainee
            who is required to give a urine sample for drug testing.
            This provision is very similar to s. 50 of the Periodic Detention Act 1995.
comment
            The amendment in relation to s. 50 of the Act should also have a carry over application to the
            regulations.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       36   Perpetuities and Accumulations Act 1985                                       Agency    DJCS      Stage    1

  section   s.14 Superannuation and other funds

provision   This section provides that the rule against perpetuities does not invalidate a fund established by a
            settlement for the benefit of:
            (a) employees;
            (b) self employed persons; or
            (c) spouses, children, grandchildren, parents, dependants or legal personal representatives of
            employees or self-employed persons; or
            (d) persons duly selected or nominated for that purpose by employees or self-employed persons
            pursuant to the provisions of the settlement.

comment     The provision does not itself affect the way in which superannuation and other funds are established, it
            merely establishes that the rule against perpetuities does not invalidate that fund.

            The term "spouse" is not defined and hence it takes on its ordinary meaning which is a husband or wife
            of the person.

            While the provision does not specifically include funds established for the benefit of either same sex
            partners or opposite sex de facto partners, these relationships may be picked up under the legislation as
            (c) dependents, or even (d) persons selected or nominated for that purpose. The legislation is not
            discriminatory as it treats all unmarried couple relationships in the same way, whether they are opposite
            or same sex relationships.

            The intention of the provision is to preserve particular types of funds from invalidity and it would be
            consistent with the types of funds already mentioned in section 14 to include funds established by a
            settlement for the benefit of domestic partners.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                           22
       37   Pharmacy Act 1931                                                              Agency    DHCC      Stage      1

  section   s. 9A Eligibility of companies for registration

provision   Specifies when a company is eligible for registration as a pharmacist. The provision includes
            requirements that at all times each share in the company is beneficially owned by a registered
            pharmacist who is a director or employee of the company or a specified relative of such a person.

            A specified relative is defined as a spouse, parent, child, grandchild or de facto spouse.

comment     The provision would have a discriminatory application to a company that was owned by a couple in a
            same sex relationship as such a company would not be eligible for registration as a pharmacist.

            In addition to including spouse and de facto spouse, the definition of "specified relative" also includes
            certain relatives of a pharmacist. The restriction of the type of relatives that may be specified relatives
            indicates an intention to limit the types of companies that may be registered as pharmacists to
            companies owned by close family members.

            It would be consistent with this restriction, for any change to be limited to a same sex partnership rather
            than the broader "domestic relationship" in the Domestic Relationships Act 1994.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       38   Powers of Attorney Act 1956                                                    Agency    DJCS      Stage      1

  section   s. 2 Interpretation for Act

provision   "Relative" in relation to a person, means-
            (a) a person related by blood, adoption or marriage to the firstmentioned person; or
            (b) a person of the opposite sex to the firstmentioned person who lives with that person as his or her
            spouse on a bona fide domestic basis, although not legally married to him or her.

            The definition of relative is relevant for s.12 Enduring powers of attorney; and s.13 Guardianship and
            consent to medical treatment under enduring power of attorney.

comment     Sections 12 and 13 of the Act provide that the signature of the donor of an enduring power of attorney, or
            a power to consent to medical treatment that is granted under an enduring power of attorney, must be
            witnessed by 2 persons, neither of whom is the donee of the power or a relative of the donee or the
            donor. The requirement relates to the need to establish an independent witness who can attest to the
            circumstances in which the power of attorney was signed.

            This provision does not confer a benefit and as such, is not discriminatory in the sense that it treats a
            same sex partner unfavourably. The legislation is discriminatory in that it treats a same sex partner
            differently to an opposite sex partner.

            The intention of the sections is to protect the interests of the donor of a power of attorney.

            It would be appropriate to amend the provision to include a same sex partner in order to give better effect
            to the intention of sections 12 and 13.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                              23
       39   Protection Orders Act 2001                                                     Agency     DJCS      Stage     1

  section   Dictionary

provision   Definition: "relevant person", in relation to a person (the original person), means-
            (a) a spouse of the original person; or
            (b) a relative of the original person; or
            (c) a child of a spouse of the original person; or
            (d) someone who normally lives, or normally lived, in the same household as the original person (other
            than as a tenant or boarder).

            "spouse" includes former spouse, de facto spouse and former de facto spouse

comment     The definition of relevant person is central to defining the types of relationships that are covered by the
            domestic violence provisions of the Act. For the Act, a person's behaviour is domestic violence if it
            causes physical injury to a relevant person etc.

            The definition of relevant person would only include a same sex partner if the partner "normally lives, or
            normally lived, in the same household as the original person". This inclusion, although slightly
            circuitous, would pick up same sex relationships. It does not include same sex non-cohabiting
            relationships, but this is consistent with the exclusion of heterosexual non-cohabiting relationships from
            the application of the domestic violence provisions of the Act.

            While the inclusion of a member of the same household in the current provisions would bring a same sex
            partner under the domestic violence provisions of the Act, such a partner is treated differently under the
            legislation. The legislation is discriminatory in form.

            The definition also has a discriminatory application in relation to a child referred to in paragraph (c) of the
            definition of relevant person. Eg. persons A and B are de facto spouses, person B has a child C from a
            former relationship, who is being threatened by person A - child C may apply for a domestic violence
            order against person A. If person A and person B are of the same sex, child C cannot apply for a
            domestic violence order, and may only apply for a personal protection order.

            The issue of same sex relationships was considered by the Community Law Reform Committee (as it
            then was) in its 1996 report on Domestic Violence: Civil Issues. The Committee considered same sex
            relationships in conjunction with non-cohabiting intimate relationships and recommended against any
            change to the definitions. The reasons for the Committee's recommendation relate more to the
            non-cohabiting relationships and the need for consistency with the Family Law Act 1975 (Clth).
            Paradoxically, the Committee also noted that "the focus of the Domestic Violence Act is the protection of
            persons who fall within an extended concept of family."

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                              24
       40   Remand Centres Regulations                                                    Agency    DJCS      Stage   1

  section   r.7 Detainees to be searched

provision   Regulation 7 provides for custodial officers to search detainees and their quarters. Regulation 7(3)
            provides that the search of a female detainee and her quarters shall be carried out by a female custodial
            officer.

            Regulation 10(5) requires that sleeping quarters occupied by male detainees shall be segregated from
            sleeping quarters occupied by female detainees.


comment     Both of these provisions raise the same issue of gender identification. The legislation itself is not
            discriminatory, but it may have discriminatory application depending on how, as an administrative matter,
            the gender of a detainee is to be determined.

            The search regulation is different to the usual formulation for search powers. Under this provision, a
            male detainee may be searched by either a male or female custodial officer, but a female detainee may
            only be searched by a female custodial officer.

            The more usual formulation of this type of search power is that the custodial officer must of the same sex
            as the person being searched. It would be preferable for this formulation to be used for the purposes of
            consistency with similar search powers in other legislation.

            The implicit policy presumption in this type of provision is that a person would feel most comfortable with
            a body search being conducted by a person of the same sex.

            It is not always appropriate for a transgender or intersex person to be searched by a person of the same
            sex as the sex with which the person identifies. There are a wide variety of individual circumstances and
            depending on the particular individual person's circumstances, they may or may not feel comfortable
            being searched by a person of the same gender as their identified gender. For example, a female to
            male transgender person may feel far less threatened if searched by a woman. There may also be
            circumstances where a transgender or intersex person does not identify as either male or female and it
            may not be possible for such a person to be searched by "a person of the same sex".

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       41   Sale of Motor Vehicles Act 1977                                               Agency    DJCS      Stage   1

  section   s.42 Qualification of auditors

provision   A licensed dealer shall not engage a person as auditor or permit his or her accounting and other records
            relating to trust money to be audited by a person ...
            (b) who is an employee of, or is the spouse of, the licensed dealer....

comment     The term "spouse" is not defined and hence it takes on its ordinary meaning which is a husband or wife
            of the person.

            The legislation is not discriminatory as it treats all unmarried couple relationships in the same way,
            whether they are opposite or same sex relationships.

            The intention of the section is to prohibit a licensed dealer from engaging as an auditor a person where
            that person may have a conflict of interest because of their relationship to the licensed dealer.

            It would be appropriate to expand the class of persons who may not be engaged to include a de facto
            spouse, and a same sex partner to give better effect to the intention of the section.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                          25
       42   Transplantation and Anatomy Act 1978                                           Agency    DHCC       Stage   1

  section   s.4 Interpretation for Act

provision   Definition: "senior available next of kin" means-
            (a) in relation to a deceased child-
              (i) where a parent of the child is available-a parent of the child; or
              (ii) where a parent of the child is not available-a brother or sister of the child who has attained the age
            of 18 years and who is available; or
              (iii) where no person referred to in subparagraph (i) or (ii) is available-a person who was the guardian
            of the child immediately before the death of the child and who is available; and
            (b) in relation to any other deceased person-
              (i) where the person, immediately before his or her death, was married and the person who was then
            his or her spouse is available-the person who was his or her spouse; or
              (ii) where the person, immediately before his or her death, was not married or, if he or she was
            married, his or her spouse is not available-a son or daughter of the person who has attained the age of
            18 years and who is available; or
              (iii) where no person referred to in subparagraph (i) or (ii) is available but a parent of the person is
            available-that parent; or
              (iv) where no person referred to in subparagraph (i), (ii) or (iii) is available-a brother or sister of the
            person who has attained the age of 18 years and is available.

comment     Section 26 - De facto spouses - contains special interpretative provision for the purposes of part 3 of the
            Act:
            For this part, where a deceased person is survived by a person who, although not married to the
            deceased person, was at the time of the death of the deceased person living with the deceased person
            as that person's husband or wife, as the case may be, on a permanent and bona fide domestic basis,
            that surviving person shall be taken-
            (a) to have been married to the deceased person; and
            (b) to have been the spouse of the deceased person immediately before his or her death.

            This provision has effect only for the purposes of part 3 of the Act which relates to donations of tissue
            after death. The definition operates so that in determining the next of kin for the purposes of consenting
            to the removal of tissue from the deceased, a de facto spouse will be regarded as a spouse.

            It is not clear why this definition applies only for the purposes of part 3. The next of kin also have a
            consent role in relation to post mortem examinations under part 4, and donations for anatomical
            purposes under part 5 of the Act.

            The intention of the provision is that the person who was most intimately involved with a deceased
            person is the most appropriate to consult on the disposition of that person's remains. This intention
            would be served by recognising same sex relationships and de facto relationships for all purposes under
            the Act.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            26
       43   Truck Act 1900                                                                 Agency    CMD        Stage   1

  section   s.10 Cases to which this Act does not apply

provision   Section 10(1)(e) provides that Act does not prevent any employer from advancing any money for the
            relief of a worker and his or her spouse or family in sickness, or from advancing any money to any
            member of the family of a worker by his or her order, nor from deducting or contracting to deduct any
            such sum or sums of money from the wages of the worker.

comment     This Act was originally a NSW Act - the Truck Act 1900 No 55 (NSW). The Act was in force in NSW
            immediately before 1 January 1911 (the date of establishment of the ACT) and was continued in force by
            section 6 of the Seat of Government Acceptance Act 1909 (Cwlth).

            The Truck Act requires the payment of wages in money, and prohibits employers from influencing how
            employees spend wages.

            The term "spouse" is not defined and hence it takes on its ordinary meaning which is a husband or wife
            fo the person. The provision is not discriminatory in that it treats a same sex partner the same as it
            treats a de facto spouse - neither is recognised under the Act.

            The intention of section 10(4) is to ensure that the Act is not a barrier to an employer in advancing wages
            to a worker for the benefit of the worker or his or her dependents. The intention would be served by
            recognising same sex relationships and de facto relationships as potential dependents for the purposes
            of the Act.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




       44   Victims of Crime (Financial Assistance) Act 1983                               Agency    DJCS       Stage   1

  section   s.2 Definitions for Act

provision   Definition: "close family member", in relation to a deceased primary victim, means a person who had a
            genuine personal relationship with the victim at the time of the victim's death, and who was, at that time-
            (a) the husband or wife of the victim; or
            (b) a parent, guardian or step-parent of the victim; or
            (c) a child or stepchild of the victim, or some other child of whom the victim is the guardian; or
            (d) a brother, sister, stepbrother, stepsister, half-brother or half-sister of the victim.


comment     The definition of close family member is used only for the purposes of determining whether a person is a
            related victim of a deceased primary victim, and therefore eligible for compensation under section 17 of
            the Act.

            While a de facto spouse or same sex partner would not be regarded as a close family member, such a
            person would probably be a related victim because of section 16(b) or (c) of the Act:

            16. A related victim in relation to a deceased primary victim is a person who, at the time of the primary
            victim's death, had any of the following relationships with him or her:
                     (a)     the person was a close family member in relation to the primary victim;
                     (b)     the person was a dependant of the primary victim;
                     (c)     the person had an intimate personal relationship with the primary victim.

            Notwithstanding that the end effect is that a same sex or de facto partner will be regarded as a related
            victim, it is difficult to see why such a person should not be included in the definition of close family
            member.

            The message that the definition sends is discriminatory, even if the Act itself is ultimately not
            discriminatory.

 change?    Yes. See Legislation (Gay, Lesbian and Transgender) Amendment Act 2003.




                                                                                                                            27
       45   Administration and Probate Act 1929                                            Agency    DJCS      Stage    2

  section   44- Definition of Spouse, eligible partner, legal spouse

provision   Spouse is defined as:
            (a) the legal spouse of the intestate; or
            (b) the eligible partner of the intestate.

            Eligible partner is defined as:
            a person other than the intestate's legal spouse who-
            (a) whether or not of the same gender as the intestate, was living with the intestate immediately before
                   the death of the intestate as a member of a couple on a genuine domestic basis; and
            (b) either-
                (i) had lived with the intestate in that way for 2 or more years continuously before the death of the
                      intestate; or
               (ii) is the parent of a child of the intestate who was not 18 years old at the date of death of the
                      intestate.

            Legal spouse is defined, in relation to an intestate, as meaning the husband or wife of the intestate
            immediately before the death of the intestate.

comment     This Act already contains provisions recognising same sex relationships. Same sex relationships are
            treated in the same manner as an opposite sex de facto relationship.

            Where there may be a difference in treatment is in the reference to "a parent of a child of the intestate".
            The term parent must assume its ordinary meaning of legal parent. This has a discriminatory application
            as there is currently no mechanism for the same sex partner of the (biological) child of the intestate to be
            concurrently recognised as a legal parent. Similarly, if the same sex partner was the biological parent of
            the child, there is currently no mechanism for the intestate to be concurrently recognised as a legal
            parent.

            Section 49BA - Gifts made before death of intestate - also has internal definitions of "legal spouse" and
            "spouse" that are in similar terms to the definitions of "legal spouse" and "eligible partner" in section 44.

            The Act also has an unequal application in respect of the children for whom an intestate was not a legal
            parent, but had assumed parental responsibility. Issues relating to discriminatory application of
            legislation relating to the children of same sex partners are examined in detail under the discussion on
            the Artificial Conception Act 1985 and the Adoption Act 1993.

 change?    Consideration should be given to changing sections 44 and 49BA so that they are expressed
            consistently with the definition of "domestic partner" in the Legislation Act 2001, and also to ensure that a
            same sex partner is relevantly recognised as a parent of the child of an intestate.




                                                                                                                            28
       46   Adoption Act 1993                                                             Agency   DEYFS Stage 2

  section   s. 18 Persons in whose favour adoption orders may be made

provision   Section 18 relevantly provides that:
            (1) Except as provided in this section, an adoption order shall not be made otherwise than in favour of a
                   man and woman jointly, being a couple-
                (a) neither of whom is a parent of the child; and
                (b) who, whether married or not, have lived together in a heterosexual relationship for a period of not
                      less than 3 years; and
                (c) who, in the opinion of the court, have demonstrated the stability of, and a commitment to, that
                      relationship.
            (2) An adoption order shall not be made in favour of a person who is not a parent of the child but has a
                  relationship of the kind described in subsection (1) with a parent of the child unless-
                (a) the instrument of consent discloses consent to adoption by that particular person; and
                (b) the court considers that it would not be preferable to make an order relating to guardianship or
                      custody of the child.


comment     Section 18(1) concerns adoptions by couples. Section 18(1) prohibits a court from making an adoption
            order in favour of a couple who are not a man and a woman. This will have a discriminatory application
            to both same sex couples, and also to persons where "man" and "woman" may not be clear. It should be
            noted that the Adoption Regulations 1993 do not require applicants to state their sex when requesting
            inclusion on the adoption list.

            In addition to the opening words specifying "a man and woman", paragraph 18(1)(a) further specifies that
            the couple must have "lived together in a heterosexual relationship". This additional requirement
            appears to have been included to indicate that the man and woman must be "a couple" rather than, for
            example, a brother and sister. While the heterosexual relationship wording has been used in adoption
            legislation in other jurisdictions, the more usual formulation would be "living together as a couple on a
            bona fide domestic basis".

            Section 18(2) provides for step-parent adoptions. The application of section 18(2) is limited to
            circumstances where the relationship of the adopting person to the existing parent of the child is of the
            type referred to in section 18(1). The provision has the same discriminatory application.

            Section 9 - Power of court - also gives the court the power to make an adoption order where a child has
            been reared, maintained and educated by the applicants or either of the applicants, or by the applicant
            and a deceased spouse of the applicant, as his, her or their child under a de facto adoption. The term
            spouse is not defined and hence has its ordinary meaning of husband or wife. While the provision is not
            discriminatory in the sense that it applies in the same way in all situations where the parties are
            unmarried - be they in a same sex or opposite sex relationship, it is currently internally inconsistent with
            the approach in section 18 of the Act (which does recognise de facto relationships for adoption
            purposes).

 change?    Consideration should be given to amending the Act so that the court may make an adoption in favour of
            any couple who have been a domestic partnership for a period of not less than 3 years, and who, in the
            opinion of the court, have demonstrated the stability of, and a commitment to, that relationship.




                                                                                                                           29
       47   Adoption Act 1993                                                            Agency   DEYFS Stage 2

  section   s. 48 Bequest by will to unascertained adopted person

provision   Sections 48 and 49 provide a mechanism for the public trustee to process bequests and gifts that are
            made to a benificiary who is not named but who is described as a child of the testator/donor or of a
            spouse, parent, child, brother or sister of the testator/donor, being a person who was adopted by another
            person.

comment     The term spouse is not defined and has its ordinary meaning of husband or wife and hence the provision
            is not discriminatory in that it applies in the same way in all situations where the parties are unmarried -
            be they in a same sex or opposite sex relationship.

            On the face of it, however, there is no reason why a testator or donor would not wish to make a bequest
            or gift to a child of a domestic partner, being a child who has been adopted by another person.

            This matter will require further consultation with the Public Trustee.

 change?    Consider amending sections 48 and 49 to apply to bequests and gifts to a child of a domestic partner of
            the testator or donor.




       48   Adoption Act 1993                                                            Agency   DEYFS Stage 2

  section   s. 13 Married child

provision   This section provides that:
            An adoption order shall not be made if the child is, or has been, married.
            On its face, this section has an unequal application where a person under the age of 18 years is in a
comment
            same sex relationship because of the effect of the Marriage Act 1961 (Cwlth).

            Under s.12 of the Marriage Act 1961, a person who has attained the age of 16 years but has not attained
            the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorising
            him or her to marry a particular person of marriageable age despite the fact that the applicant has not
            attained the age of 18 years. A person in a same sex relationship has no legal option of marrying their
            same sex partner.

            It should be noted that a de facto spouse who is under 18 may also still be adopted under the Act. In
            terms of the legal relationships that are available to a person in a same sex relationship, the Act is not
            discriminatory because all children who may be part of an unmarried couple are affected by the provision
            in the same way regardless of whether it is a same sex or opposite sex relationship. It should be noted
            that where these circumstances exist, however, this would be a relevant factor for the court in
            determining what is in the best interests and welfare of the child.

 change?    Not recommended.




                                                                                                                           30
       49   Adoption Regulations 1993                                                     Agency   DEYFS Stage 2

  section   r. 4 Adoption list-requests for inclusion

provision   This regulation requires applicants for inclusion on the adoption list to state, among other things, the sex
            of their children (if any).

            Other regulations similarly require various agencies and persons to state the sex of children.

comment     The term "sex" is not defined and hence will take on its ordinary meaning. The issue of needing to
            identify a sex can be problematic. The requirement to state the sex of children in the adoption context
            needs to be examined in the broader context of whether it is necessary to clarify the meaning of "sex" in
            terms of transgender and intersex people.

            Consideration should also be given to whether it is necessary to retain the requirement to state the sex
            of children for these purposes.

 change?    Consider the need to retain the requirement to state sex, and if retained, consider the need to define the
            term.




                                                                                                                           31
       50   Artificial Conception Act 1985                                              Agency    DJCS      Stage    2

  section   s. 5 Presumption of paternity

provision   Section 5 provides for presumptions of paternity as follows:
            (1) Where a married woman has, with the consent of her husband undergone a procedure as a result of
                 which she has become pregnant-
                (a) her husband shall, for all purposes, be conclusively presumed to be the father of any child born
                      as a result of the pregnancy; and
                (b) if any of the semen used in the procedure was produced by a man other than the woman's
                      husband-that man shall, for all purposes, be conclusively presumed not to be the father of any
                      child born as a result of the pregnancy.
            (2) In any proceedings in which the operation of subsection (1) is relevant, the consent of a husband to
                 the carrying out of a procedure in respect of his wife shall be presumed, but that presumption is
                 rebuttable.

            Section 3 - Meaning of married woman, husband and wife - is an interpretative provision which provides
            as follows:
            (1) A reference in this Act to a married woman includes a reference to a woman who is living with a man
                  as his wife on a genuine domestic basis although not married to him.
            (2) A reference in this Act to the husband or wife of a person is, if the person is living with another
                  person of the opposite sex (the partner) as the spouse of the partner on a genuine domestic basis
                  although not married to the partner, and includes a reference to the partner to the exclusion of the
                  spouse (if any) of the firstmentioned person.

comment     This provision is premised on the basis that the parents of a child are male and female. There is no
            provision for the same sex partner of a person who has undergone an assisted reproductive technology
            procedure to be recognised as a parent of a child conceived as a result of that procedure.

            The recognition of parental status is restricted to the male partner of a woman who conceives in these
            circumstances. As such, the provision has a discriminatory application.

            Consideration should be given to recognising as a parent the female partner of a woman who conceives
            in these circumstances in the same way as a male partner is recognised as parent. Note that section 7 -
            Donor of semen-other circumstances - provides that the donor of semen used in the procedure is
            conclusively presumed not to the father of any child. So a child born in these circumstances currently
            has only one legal parent - the birth mother.

            The extension of the automatic presumption in section 5 would have a number of potential beneficial
            outcomes for the child born in these circumstances as the child would then have two legal parents rather
            than one. Where ACT legislation refers to a "parent", this would then automatically apply to both parents
            of a child born in these circumstances.

            On the question of transgender people and parenting, the parentage presumptions under this Act would
            seem to apply to a transgender person but only if they have obtained a new birth certificate under the
            Births, Deaths and Marriages Act 1997. Such a certificate is conclusive evidence that the person's sex is
            the sex stated in the certificate and applies for all ACT law including the Artificial Conception Act 1985.

 change?    Consideration should be given to amending section 5 to recognise as a parent the female partner of a
            woman who conceives a child through assisted reproductive technologies in the same way as a male
            partner is recognised as parent.




                                                                                                                          32
       51   Artificial Conception Act 1985                                                 Agency    DJCS      Stage   2

  section   Part 3 Parentage orders

provision   This part provides a mechanism for parties to a substitute parent agreement to obtain a parentage order.

            Essentially, part 3 allows the genetic parents of a child born under a substitute parent agreement to
            apply for an order recognising them as the parents of the child (a "parentage order").

            Section 2 - Definitions for Act - contains the critical definition of substitute parent agreement as follows:
            substitute parent agreement, about a child in relation to whom a parentage order is applied for, means a
            substitute parent agreement within the meaning of the Substitute Parent Agreements Act 1994 if-
            (a) under the agreement, a man and a woman have indicated their intention to become the prescribed
                 parents of the child; and
            (b) either the man is the child's genetic father, or the woman is the child's genetic mother; and
            (c) the agreement is not a commercial substitute parent agreement within the meaning of that Act.

comment     The provisions are discriminatory as they would prohibit a same sex couple from applying for an order as
            the Act only recognises a substitute parent agreement under which "a man and a woman" have
            indicated their intention to become the parents of a child born as the result of the surrogacy
            arrangement.

            This means, for example, that while two gay men who are a couple may enter into a surrogacy
            arrangement with a woman under which the woman agrees to become pregnant using the semen of one
            of the men, and it is intended that the child born as a result of the pregnancy will be taken to be the child
            of the couple, this parentage relationship can not be recognised in the same way as would a relationship
            involving an opposite sex couple.

            It should be noted that the Substitute Parent Agreements Act 1994 does not have the same definition of
            substitute parent agreement. The definition in that Act is inclusive of substitute parent agreements
            entered into by same sex couples.

 change?    Consideration should be given to amending the parentage order provisions so that they are
            non-discriminatory.




       52   Artificial Conception Act 1985                                                 Agency    DJCS      Stage   2

  section   s. 17 Bequest by will to unascertained prescribed child

provision   Sections 17 and 18 provide a mechanism for the public trustee to process bequests and gifts that are
            made to a benificiary who is not named but who is described as a child of the testator/donor or of a
            spouse, parent, child, brother or sister of the testator/donor, being a person in respect of whom a
            parentage order has been made.

comment     These provisions are very similar and serve a similar purpose to the provisions in sections 48 and 49 of
            the Adoption Act 1993.

            The term spouse is not defined and has its ordinary meaning of husband or wife and hence the provision
            is not discriminatory in that it applies in the same way in all situations where the parties are unmarried -
            be they in a same sex or opposite sex relationship.

            On the face of it, however, there is no reason why a testator or donor would not wish to make a bequest
            to a child of a domestic partner, being a child in respect of whom a parentage order has been made.

            This matter will require further consultation with the Public Trustee.

 change?    Consider amending sections 17 and 18 to apply to bequests and gifts to a child of a domestic partner of
            the testator or donor.




                                                                                                                            33
       53   Birth (Equality of Status) Act 1988                                           Agency   DJCS       Stage      2

  section   s. 5 Children all of equal status

provision   This section provides as follows:
            Subject to section 6, whenever the relationship of a person with his or her father and mother, or with
            either of them, is to be determined by or under the law of the Territory, whether in proceedings before a
            court or otherwise, the relationship shall be determined irrespective of whether the father and mother of
            the person are or have ever been married to each other, and all other relationships of or to that person,
            whether of consanguinity or affinity, shall be determined accordingly.

comment     The purpose of this Act is to remove the legal disabilities of persons born out of wedlock; to provide for
            declarations of parentage; and related purposes.

            Section 5 establishes that all children are born of equal status irrespective of whether the father and
            mother of the child are married. This provision will need to be examined in the context of any decision
            to expand the parentage presumptions in the Artificial Conception Act 1985 to include people in same
            sex relationships.

 change?    Examine need for amendment in light of any amendments to the Artificial Conception Act 1985.




       54   Birth (Equality of Status) Act 1988                                           Agency   DJCS       Stage      2

  section   part 3 Establishing parentage

provision   This part provides for presumptions about the parentage of children arising from:
             * marriage - section 7 - the child is presumed to be the child of the woman and her husband;
             * cohabitiation - section 8 - the child is presumed to be the child of a man with whom the woman
                 cohabited during the relevant period;
             * registered information - section 9 - the child is presumed to be the child of the mother and father
                 entered in a register of births or a register of parentage information;
             * findings of courts - section 10 - the child is conclusively presumed to be the child of a parent where
                 a court has made such a finding; and
             * acknowledgments of paternity - sections 11 and 12

             The part goes on to provide for when these presumptions are rebuttable, and also prescribes a process
             for acknowledging paternity and seeking declarations of parentage.

comment     The references to man and woman in this Act may have an uncertain application to transgender and
            intersex people. The Act is premised on the biological reality that where a man and woman cohabit and
            have sexual intercourse, then if the woman has a child within the relevant period, the child is presumed
            to have been conceived as a result of that sexual intercourse. The presumptions in this Act are
            supplemented by those in the Artificial Conception Act 1985, which recognises that in some cases, the
            presumptions in this Act are clearly at odds with particular biological circumstances - ie. the child has
            been conceived using artificial reproductive technologies.

            This Act, and in particular the provisions relating to declarations of parentage, will need to be examined
            in the context of any decision to expand the parentage presumptions in the Artificial Conception Act 1985
            to include people in same sex relationships.

            The Act may also require further examination in the broader context of whether it is necessary to clarify
            the meaning of such terms as "sex" , "man" and "woman" in their application to transgender and intersex
            people.

 change?    Examine need for amendment in light of any amendments to the Artificial Conception Act 1985.
            Consider also the need to define the terms relating to gender.




                                                                                                                             34
       55   Births, Deaths and Marriages Registration Act 1997                                 Agency   DJCS    Stage   2

  section   part 2 Registration of births

provision   This part sets out requirements for the registration of births in the Territory.

            In particular, sections 8 and 10 read together requires the parents of a child to register the birth of a child
            in the Territory.

comment     This part is very non-discriminatory in its language. The Act consistently refers to "parents" rather than
            mother and father. In the event that a same sex partner was recognised as a parent because of the
            operation of another law such as the Artificial Conception Act 1985, this Act would not need to be
            amended to recognise that person as a parent.

            One aspect of this part that may need to be examined further is the requirement in section 16B that the
            registrar must enter details of a child's sex when re-registering the birth of a child pursuant to a
            parentage order made under part 3 of the Artificial Conception Act 1985 (a parentage order arising out of
            a substitute parent agreement). The issue of entering details of a child's sex into the register of births is
            examined in more detail in the discussion on the Births, Deaths and Marriages Registration Regulations
            1998.

 change?    Consider the need to retain references to the sex of a child, and if necessary to retain, consider the need
            to define.




                                                                                                                              35
       56   Births, Deaths and Marriages Registration Act 1997                             Agency    DJCS       Stage   2

  section   part 4 Change of sex

provision   The critical provisions of this part are in section 24(1) which provides as follows:
            (1) A person who has attained the age of 18 years-
                (a) whose birth is registered in the Territory; and
                (b) who has undergone sexual reassignment surgery; and
                (c) who is not married;
            may apply to the registrar-general for alteration of the record of the person's sex in the registration of the
            person's birth.

            Section 23 defines "sexual reassignment surgery" as follows
            sexual reassignment surgery means a surgical procedure involving the alteration of a person's
            reproductive organs that is carried out-
                 (a) for the purpose of assisting a person to be considered to be a member of the opposite sex; or
                 (b) to correct or eliminate an ambiguity relating to the sex of the person.

            Section 29 - Effect of certificates issued in respect of transsexual persons - provides that a birth
            certificate issued in respect of a transsexual person is, for the purposes of any law of the Territory,
            conclusive evidence of the person's sex as stated in the certificate.

comment     There are a couple of aspects of these provisions that may need to be amended. Firstly, the wording of
            paragraph (b) may need to be clarified as it would appear that the wording may be taken to imply that an
            intersex person has to undergo sexual reassignment surgery in order to have their correct sex recorded
            on a birth certificate. This implication is supported by section 24(2) and (3) which provide particularly
            that the parents of a child who has undergone sexual reassignment surgery may apply for an alteration
            to the record of the child's birth.

            A better view is that the registrar-general would simply amend the record of birth of an intersex person
            using the provisions of section 40 of the Act which allow a correction of the register. These potentially
            ambiguous provisions of the Act should be clarified.

            An interesting point to note with section 24 is that while it prevents the recognition of a change of sex for
            an adult who is married, it does not prohibit a similar recognition of change of sex for a married child.

            These provisions also need to be considered further in light of the recent decision of the Family Court in
            Re: Kevin & Jennifer.

            The provisions should also be considered in the context of any proposal to define "sex" for the purposes
            of ACT laws. The provisions are currently based on a binary notion of sex, where a person is to be
            considered a member of "the opposite sex".

 change?    Consider need to retain records of sex and if so, to define what is meant by sex. The reference to
            "opposite sex" in part 4 should also be considered in this context.




                                                                                                                             36
       57   Births, Deaths and Marriages Registration Regulations 1998                   Agency    DJCS      Stage     2

  section   Regs 5, 6, 7 and 9

provision   Regulation 5 sets out the information required by the registrar-general to register a birth. Among other
            matters, the regulation makes reference to disclosing whether the parents are married; the name,
            occupation, age, date and place of birth of both the mother and the father of the child; and the sex of the
            child.

            Regulations 6 and 7 involve the application to register a change of sex. Information to be provided to the
            registrar-general includes information on former spouses of the person; and details of the mother and
            father of the person.

            Regulation 9 sets out the information required by the registrar-general to register a death. Information to
            be provided to the registrar-general includes the marital status of the deceased, details of spouses and
            former spouses where there has been a marriage; the sex of the deceased; and details of the mother
            and father of the deceased.

comment     The registrar-general has previously been approached to acknowledge same sex relationships on death
            certificates. Consideration should also be given to changing the requirement to state a person's "marital
            status" to "relationship status" consistently with the amendments to the Discrimination Act 1991 in the
            Discrimination Amendment Act 2003, and recording every domestic partnership on registration of death
            and sex change.

            It may also be appropriate to examine the reasons and need for including details of a person's sex in the
            register of births and deaths. The recording of this information is not necessarily conclusive of the
            person's sex, and the use of this information can cause individuals considerable difficulty.

            Provisions requiring details of "mother and father" may need to be examined if the Artificial Conception
            Act 1985 is amended to recognise a broader "parent".

 change?    Consideration should be given to changes to recognise all domestic partnerships and parentage
            arrangments in relation to registerable events. The purpose of including the sex of a person on the
            various registers should to be examined, and if necessary, consideration should be given to defining the
            term.




       58   Boxing Control Act 1993                                                      Agency     CMD      Stage     2

  section   s.13 Female boxing contests

provision   Section 13 provides:
            A female shall not engage in a professional boxing contest without the written approval of the Minister.
            Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

            Section 14 provides a process for a female to apply to the Minister for approval.

comment     This provision has a potentially ambiguous application to transgender and intersex people and should be
            considered in the broader context of whether it is necessary to clarify the meaning of such terms as "sex"
            , "man" and "woman" in their application to transgender and intersex people.

 change?    Consider need for amendment in broader context of whether it is necessary to clarify the meaning of
            such terms as "sex" , "man" and "woman" in their application to transgender and intersex people.




                                                                                                                           37
       59   Casino Control Act 1988                                                       Agency     DOT       Stage    2

  section   s. 68 Exclusion of young people

provision   This provision excludes unaccompanied young people from a casino as follows:

            (1) The casino licensee must not permit a young person to enter or remain in-
                (a) a gaming area; or
                (b) except in the company of the spouse or a parent of the person-any other part of the casino.
            Maximum penalty: 50 penalty units.
            (2) A young person must not enter or remain in-
                (a) a gaming area; or
                (b) except in the company of the spouse or a parent of the person-any other part of the casino.
            Maximum penalty: 5 penalty units.
            ...
            (5) In this section....
            spouse means a spouse who is more than 18 years old.

comment     On its face, this definition has an unequal application where a person under the age of 18 years is in a
            same sex relationship because of the effect of the Marriage Act 1961 (Cwlth).

            Under s.12 of the Marriage Act 1961, a person who has attained the age of 16 years but has not attained
            the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorising
            him or her to marry a particular person of marriageable age despite the fact that the applicant has not
            attained the age of 18 years. A person in a same sex relationship has no legal option of marrying their
            same sex partner and hence cannot make use of the "accompanied by a spouse" exception in section 68
            of the Casino Control Act.

            It should be noted that a de facto spouse is also unable to enter a casino using the "accompanied by a
            spouse" exception. In terms of the legal relationships that are available to a person in a same sex
            relationship, the Act is not discriminatory because all children who may be part of an unmarried couple
            are affected by the provision in the same way regardless of whether it is a same sex or opposite sex
            relationship - that is, they do not fall within the exception in section 68.

            It should be noted, however, that similar provisions in the Liquor Act 1975 do provide that the
            responsible adult accompanying a minor on licensed premises may be a parent, a spouse, or de facto
            spouse. Amendments made by the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003
            have included all domestic partners as potential responsible adults for the purposes of the provisions of
            the Liquor Act. Consideration should be given to adopting the same policy approach in relation to the
            Casino Control Act 1988.

 change?    Consideration should be given to adopting the same non-discriminatory approach as in the Liquor Act
            1975.




       60   Children and Young People Act 1999                                            Agency   DEYFS Stage 2

  section   s. 13 How to apply the best interests principle

provision   Section 13(1) provides that in making a decision or taking action under the Act, a person applies the
            best interests principle if they take into account particular factors including, where relevant, the age,
            maturity, sex and background of the child or young person.

comment     The specific factoring in of the sex of the child or young person raises the issue of definitions of sex.
            "Sex" is not defined and it would therefore take on its ordinary meaning which is "the character of being
            either male or female" (Macquarie Dictionary). An intersex or transgender child or young person may
            idenfity as male or female, or may identify as neither.

            While the matters that are listed in section 13(1) are only to be taken into consideration where they are
            relevant, and do not limit the matters that may be taken into account, the fact that a child or young
            person is an intersex or transgender person may be quite central to the question of what is in their best
            interests.

 change?    Consider the need to define "sex" for this provision.




                                                                                                                            38
       61   Civil Law (Wrongs) Act 2002                                                    Agency     DJCS      Stage   2

  section   s. 20 Definitions for pt 3.1

provision   Section 20 of the Act defines a "member" of a deceased person's family, and includes, among others:
            (c) a child of the person (including a child born alive after the death); and
            (d) a person to whom the dead person acted, immediately before his or her death, in place of a parent.

comment     The Act has a potentially discriminatory application in relation to the children of a deceased person
            where the deceased person was in a same sex relationship. If the deceased is not the biological parent
            and is not presumed to be a parent because of the operation of the Birth (Equality of Status) Act 1988,
            the only option for such a child of the deceased's partner to be eligible for damages under the Act is if
            the deceased had "acted in the place of a parent". While the deceased could have "acted in the place of
            a parent" for a child born before their death, the deceased could not have done so if the child was born
            after their death.

            A possible solution would be for the Act to include a new provision that a child of the deceased includes
            a child of the domestic partner of the deceased for whom the deceased had expressed an intention to
            act in place of a parent.

 change?    Consider in context of any amendments to extend the parentage presumptions in the Artificial
            Conception Act 1985 to same sex couples.




       62   Conveyancing Act 1919                                                          Agency     DJCS      Stage   2

  section   s. 151B Receipts by married children

provision   A married child has power to give valid receipts for all income (including statutory accumulations of
            income made during childhood) to which the child may be entitled as if the child were an adult.
            This is an archaic provision that relates to employment. It is an exception to the general common law
comment
            rule that a child cannot validly contract. While the provision is non-discriminatory in that it treats a minor
            who is in a de facto relationship in the same way as it treats a minor in a same sex relationship, the
            continued desirability of this archaic provision is being examined in the context of the Law Review
            Program.

 change?    This provision will be examined further in the context of the Law Review Program.




                                                                                                                             39
       63   Credit Act 1985                                                                Agency    DJCS      Stage   2

  section   s.5 Interpretation for Act

provision   Definitions of "commission charge" and "guarantor" both contain references to a spouse.

            "commission charge", in relation to a regulated credit sale contract or a regulated loan contract, means
            an amount paid or payable (whether directly or indirectly and whether or not under an agreement or
            undertaking) by way of commission or as a payment in the nature of a commission (however described),
            being an amount-
            (a) that is paid or payable in relation to the introduction of the debtor to the credit provider and paid or
                 payable by the credit provider or the spouse of the credit provider or, if the credit provider is a body
                 corporate, the credit provider or a related body corporate within the meaning of the Corporations
                 Act....

            "guarantor" means a person who enters into a contract of guarantee in relation to the performance by a
            debtor or mortgagor of his or her obligations under a credit contract or mortgage or a person who enters
            into a contract of indemnity in relation to a credit contract or mortgage but does not include a body
            corporate or-
            (a) a person who is the supplier, or spouse of the supplier, of goods and services to which the contract
                 or mortgage relates or, if the supplier is a body corporate, a person who is a director or officer of the
                 body corporate or is a related body corporate within the meaning of the Corporations Act or a
                 director or officer of such a related body corporate or spouse of such a director or officer; or....


comment     The term spouse is not defined and hence it takes on its ordinary meaning of husband or wife. The
            provision is not discriminatory in that it treats a person who is in a de facto relationship in the same way
            as it treats a person in a same sex relationship.

 change?    Consideration should be given as to whether it would be appropriate for these definitions to be
            broadened to also include reference to de facto and same sex couples.




                                                                                                                             40
       64   Debits Tax Act 1997                                                           Agency     DOT       Stage   2

  section   s.16 Rebates

provision   (1) In this section:
            pensioner means-
             (a) a person to whom, or in respect of whom, 1 of the following pensions or allowances under the Social
                   Security Act 1991 (Cwlth) is being paid:
                  (i) an age pension under part 2.2;
                  (ii) a disability support pension under part 2.3;
                  (iii) a wife pension under part 2.4;
                  (iv) a carer pension under part 2.5;
                  (v) a sole parent pension under part 2.6;
                  (vi) a widowed person allowance under part 2.7;
                  (vii) a widow B pension under part 2.8; or
              (b) a service pensioner within the meaning of the Veterans' Entitlements Act 1986 (Cwlth); or
              (c) a person to whom the Veterans' Entitlements Act 1986 (Cwlth), section 22 applies who is being paid
                    at the maximum rate referred to in that Act, section 22 (3); or
              (d) a person to whom a pension under the Veterans' Entitlements Act 1986 (Cwlth), part 2 is being paid
                    and to whom-
                   (i) that Act, section 22 (4), 23, 24 or 30 (1) applies; or
                   (ii) that Act, section 27 applies because of a war-caused injury or war-caused disease of a kind
                         specified in section 27 (1), table, item 1, 2, 3, 4, 5 or 6; or
             (e) a person who is, or is within a kind or class of persons that is, prescribed for paragraph.

comment     The relevance of the definition is that a pensioner or an unemployed person who is a resident of the ACT
            may, within 12 months after the end of a financial year, apply to the commissioner for a rebate in respect
            of debits tax paid during that year in respect of an account kept in the ACT.

            Paragraph (a) of the definition of "pensioner" relies on the Social Security Act 1991 (Cwlth) which is in
            itself discriminatory in application. For example, a person in a same sex relationship is not eligible for a
            wife pension under part 2.4, a widowed person allowance under part 2.7, or a widow B pension under
            part 2.8 notwithstanding that but for the sex of their deceased partner, they would otherwise be eligible.
            (Note that the sole parent pension has been replaced with the parenting payment under the Social
            Security Act).

            Similarly, paragraph (b) refers to a service pensioner within the meaning of the Veterans' Entitlements
            Act 1986 (Cwlth). A service pension under that Act includes persons receiving a war widow or war
            widower pensioner. Again, the Commonwealth Act excludes people in a same sex relationship from
            receiving these type of pensions.

            The effect of having the definition of pensioner reliant on the criteria in Commonwealth legislation is
            persons who would otherwise be eligible but for the fact that their partner is of the same sex, are not
            eligible to apply for a rebate on debits tax.

            While the definition of "pensioner" could be amended to also include a person who "but for" the sex of
            their partner would be eligible for a wife pension, widowed person allowance, a widow B pension, or a
            service pension, consideration would need to be given to the likely number of persons affected, the likely
            benefits, and the likely cost of attempting to duplicate the assessment processes in the relevant
            Commonwealth legislation.

 change?    The feasibility of having a modified definition of pensioner to include persons who are excluded by the
            relevant definitions in Commonwealth legislation needs to be assessed.




                                                                                                                           41
       65   Disability Services Act 1991                                                    Agency   DDHCS Stage 2

  section   Schedule 2

provision   Schedule 2 sets out requirements to be complied with in relation to the design and implementation of
            programs and services relating to people with disabilities. One of these requirements is that programs
            and services should be designed and administered so as to meet the needs of people with disabilities
            who may experience additional disadvantage as a result of their sex, ethnic origin, physical isolation or
            Aboriginality.

comment     The requirements of schedule 2 are relevant for the purposes of section 6 - Financial assistance for
            providers of services. The Minister must not approve a grant under this section unless satisfied that
            programs and services funded by the grant would comply with the requirements set out in schedule 2.

            "Sex" is not defined and it is not clear whether schedule 2 would require programs to be designed to also
            meet the needs of people with disabilities who may face additional disadvantage because they are a
            transgender or intersex person.

 change?    Consideration should be given to clarifying the meaning of "sex" in this context. Consideration might
            also be given to whether there is a need to include "sexuality" as an area where a person with a disability
            might face disadvantage.




       66   Discrimination Act 1991                                                         Agency    DJCS      Stage   2

  section   s.4 Interpretation for Act

provision   Definitions for the Act include:
            "transsexual" means a person of one sex who-
                     (a)      assumes the bodily characteristics of the other sex, whether by means of medical
            intervention or otherwise; or
                     (b)      identifies himself or herself as a member of the other sex or lives, or seeks to live, as a
            member of that other sex.

            "sexuality" means heterosexuality, homosexuality (including lesbianism) or bisexuality.



comment     "Sex" is one of the protected attributes under the Act, although it is not defined in the Act. As such, it will
            take on its ordinary meaning which is "the character of being either male or female" (Macquarie
            Dictionary). An intersex or transgender person may not regard themself as either male or female.
            While alternative grounds for a discrimination complain may be possible, consideration should be given
            to whether the term "sex" for the purposes should be defined in a manner consistent with the broad and
            beneficial nature of the Act.

            The narrower, binary interpretation of the definition of sex under the current Act is reinforced by the
            definition of transsexual, which is expressed in terms of "the other" sex.

            Consideration might also be given to whether the term "transsexual" is appropriate given the broadness
            of the definition. Paragraph (b) of the definition is expressed in terms of the person identifying "as a
            member of the other sex OR lives, or seeks to live" as a member of that other sex. This Act should have
            a broad application as it is an Act about protecting people from discrimination.

            This provision should also be examined in light of the recent decision of the Family Court in Re:Kevin
            and Jennifer.

 change?    Consider need to amend definition of "transsexual" for the Act. Consider need to define "sex" for the
            purposes of the Act.




                                                                                                                              42
       67   Domestic Relationships Act 1994                                                Agency    DJCS      Stage   2

  section   s.3 Interpretation for Act

provision   Defines who is a child of the parties to a domestic relationship for the purposes of the Act as each of the
            following:
             (a) a child of whom the parties are the parents;
             (b) a child of whom the parties are presumed, under the Artificial Conception Act 1985, to be the father
                  and mother;
             (c) a child adopted by both parties;
             (d) a child for whom both parties accept responsibility for his or her long-term welfare.


comment     This Act takes an inclusive approach to the interpretation of who is "a child of the parties". This definition
            would currently include children who are not recognised as being a child of the parties under other
            Territory legislation.

            While the broad application of this definition should be maintained, consideration should also be given to
            the need to amend this definition in the context of the reference to "mother and father" if the parentage
            presumptions in the Artificial Conception Act 1985 are amended to include recognition of a wider range
            of parenting arrangements.

 change?    Consider amendments in light of any extension of the parentage presumptions in the Artificial
            Conception Act 1985.




       68   Domestic Violence Agencies Act 1986                                            Agency    DJCS      Stage   2

  section   Dictionary

provision   Definition: child, of a person, includes-
            (a) a child who normally lives with the person; and
            (b) a child for whom the person is a guardian.


comment     The definition of child is relevant for section 18 - Disclosure of information to an approved crisis support
            organisation - which allows the Australian Federal Police to disclose to an approved crisis support
            organisation any information that is likely to aid the organisation in rendering assistance to the person or
            to any children of the person.

            The issue of who is a child of the person does have a potential impact in the application of this section.
            This is relevant in any relationship where only one of the partners is a legal parent of the child, but
            particularly so in same sex relationships where the options for a partner to be recognised as a parent are
            limited by law. While the child who is living with such a person will be recognised for the purposes of this
            section, a child who is not living with the person but for whom the person has parental responsibility will
            not be recognised.

 change?    Consideration should be given to recognising a wider range of functional parent/ child relationships for
            the purposes of this Act.




                                                                                                                             43
       69   Duties Act 1999                                                                  Agency     DOT       Stage   2

  section   Dictionary

provision   The dictionary has the following definitions:
            "domestic partner" means a person who is a party to a domestic relationship, and includes a person who
            was a party to a domestic relationship that has ceased, whether the cessation took effect in Australia or
            elsewhere.

            "domestic relationship"-see the Domestic Relationships Act 1994.

            "related person" means a person who is related to another person in accordance with any of the
            following provisions:
            (a) individuals are related persons if-
                  (i) one is the spouse or domestic partner of the other; or
                  (ii) the relationship between them is that of parent and child, brothers, sisters, or brother and
                        sister;....

            "spouse", in relation to a person, includes another person who is in a domestic relationship within the
            meaning of the Domestic Relationships Act 1994 with the person.

comment     The definition of domestic partner in this Act is broader than the new definition in the Legislation Act
            2001 that is inserted by the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003. Note
            that the use of this specific definition in the Duties Act means that the definition in the Legislation Act will
            not apply as there is a clear contrary intention. The definition in the Duties Act is essentially a person
            who is in a domestic relationship within the meaning of the Domestic Relationships Act 1994.

            The term domestic partner is only used once in the Act, and that is in the definition of related person.
            The definition of related person is used in sections 17 and 50 to grant exemptions for liability to pay duty,
            and in the definition of "associated person".

            The inclusion of "domestic partner" in the definition of related person is superfluous as the definition of
            "spouse", which is also used in the definition of related person, is expressed to include a person in a
            domestic relationship.

            The effect of including domestic relationships under the definition of spouse is to expand the ordinary
            meaning of spouse significantly beyond the simple inclusion of de facto spouses and same sex couples
            to include a number of non-intimate and non-familial relationships.

            The term spouse is used in section 72 to specify the duty payable on a transfer of property to common
            ownership. The term is also used in sections 74B, 115H and 213 which all provide that no duty is
            chargeable where particular property is transferred as part of a court order for the distribution of property
            consequent on the end of the relationship between spouses.

            The Act also contains separate provisions for exemptions in respect of domestic relationship agreements
            and termination agreements under the Domestic Relationships Act 1994.

 change?    The interrelationship of these various definitions and their use in the Duties Act should be considered in
            the context of simplifying the operation of the Act and, in so far as it is appropriate, making terms used
            consistent with terminology used in the Legislation Act.




                                                                                                                               44
       70   Electoral Act 1992                                                                Agency   DJCS     Stage    2

  section   s.58 Contents of roll

provision   Section 58 specifies the particulars that are to be included on the electoral roll:

            (1) A roll shall contain the following particulars in relation to each elector:
                   (a) surname or family name;
                   (b) each given name;
                   (c) address;
                   (d) sex;
                   (e) date of birth.
                for each elector.

comment     Sex is not defined in the Act and hence it will take on its ordinary meaning which is "the character of
            being either male or female" (Macquarie Dictionary). This may have an uncertain application to
            transgender people or intersex people who may not identify as either male or female.

            The inclusion of this information on the electoral roll also has implications where a person changes their
            sex. Section 66 - Maintenance of rolls - allows amendments to the electoral roll as follows:
            (1) The commissioner shall, so far as practicable, keep the rolls up to date.
            (2) The commissioner may alter a roll at any time as follows:
                    (a)      to register any change of name;
                    (b)      to bring up to date any particulars appearing on the roll;
                    (c)      to correct any mistake or omission;
                    (d)      to remove the name of a deceased elector;
                    (e)      in relation to a person who is enrolled on the Commonwealth roll-to reflect any alteration
            under the Commonwealth Electoral Act, section 105 in relation to that enrolment.

            While a person who has obtained a new birth certificate would be able to have their details updated on
            the electoral roll, it is not clear what capacity the commissioner would have to otherwise alter the roll.

            Consideration should be given to the purpose of including details of the sex of electors on the electoral
            roll and the practical use of keeping this information. If it is necessary to include this information on the
            electoral roll, consideration should be given to defining what is meant by "sex".

 change?    Consider purpose and practical use of requiring the sex of electors to be included on the electoral roll. If
            it is necessary to include this information on the electoral roll, consideration should be given to defining
            what is meant by "sex".




                                                                                                                             45
       71   Emergency Management Regulations 1999                                        Agency    DOT       Stage   2

  section   r.4 Exempt contributions

provision   For the Act section 54(1), definition of exempt contributions, the following classes of persons are
            prescribed:
            (a) persons who are the holders of any 1 or more of the following cards issued to them by the
                 Commonwealth:
                  (i)        concession card;
                  (ii)       health benefits card;
                  (iii)      health care card;
                  (iv)       pensioner health benefits card;
                  (v)        pharmaceutical benefits concession card;
                  (vi)       social security card;
            (b) persons in receipt of service pensions under the Veterans' Entitlements Act 1986 (Cwlth), part 3.
            (c) persons permanently resident outside the Territory.


comment     Under section 54 of the Act, contributions are exempt contributions where they are paid into a health
            benefits fund conducted by a health benefits organisation, by contributors included in a prescribed class
            of persons for the purpose of securing entitlement to basic health benefits. Exempt contributions are
            excluded for the purposes of calculating the ambulance levy payable by a health benefits organisation.

            The issue of the use of Commonwealth legislation criteria for pensioners is discussed in detail in respect
            of the Rates and Land Rent (Relief) Act 1970. The application of that definition here is more remote as it
            is not a direct exemption for pensioners, but rather a factor in calculation of payments by health benefits
            organisations. This may or may not be passed on directly to individual contributors to the health
            benefits organisation.

 change?    This regulation should be considered in the general context of reliance on discriminatory Commonwealth
            legislation to define "pensioner" for the purposes of ACT law.




                                                                                                                          46
       72   Evidence Act 1971                                                            Agency    DJCS      Stage   2

  section   s.57 Incriminating questions

provision   Under section 57, a person is not bound to answer a question or interrogatory in a proceeding if the
            answer to the question or interrogatory would incriminate, or tend to incriminate, the person or his or her
            spouse.

            Section 74 - Comment on failure to give evidence - provides that the prosecution may not comment on
            any failure by the accused, or the accused's spouse, to give evidence.

            Section 54 - Parties as witnesses in civil proceedings - provides that a husband or wife of a party to a
            proceeding (other than a criminal proceeding) and the wife or husband of a person on whose behalf such
            a proceeding is prosecuted or defended is a competent and compellable witness in the proceeding and
            is compellable to disclose communications made between them during the marriage.

comment     These provisions of the Evidence Act 1971 have been overtaken by the the Commonwealth Evidence
            Act 1995. The Evidence Act 1995 (Cwlth) applies to all proceedings in ACT courts until a day fixed by
            proclamation.

            The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 28 provides that a provision of an
            ACT enactment (including the Evidence Act 1971) has no effect to the extent that it is inconsistent with a
            Commonwealth law in force in the ACT (including the Evidence Act 1995 (Cwlth)), but an ACT provision
            is taken to be consistent with a Commonwealth law to the extent that it is capable of operating
            concurrently with the Commonwealth law.

            However, the Evidence Act 1995 (Cwlth), s 8 (4) (a) provides that that Act does not affect the operation
            of the provisions of the Evidence Act 1971 specified in the regulations under the Evidence Act 1995
            (Cwlth). None of these sections are listed in those regulations and hence the provisions do not apply in
            ACT courts. There are, however, similar provisions in sections 12, 18 and 20 respectively of the
            Evidence Act 1995 (Cwlth) that do apply in ACT courts.

            The operation of section 8 of the Evidence Act 1995 (Cwlth) also means that while other ACT legislation
            that may incidentally deal with evidentiary matters, such as the Magistrates Court Act 1930, may be
            amended in relation to evidentiary provisions, the provisions of the Evidence Act 1971 may not.


 change?    Consider repeal of provisions in Evidence Act 1971 and placement of more comprehensive provisions in
            the Evidence (Miscellaneous Provisions) Act 1971.




                                                                                                                          47
       73   Family Provision Act 1969                                                     Agency    DJCS       Stage   2

  section   s.4 Interpretation

provision   "domestic partner", in relation to a deceased person, means a person who lived with the deceased in a
            domestic relationship for 2 years continuously at any time during the life of the deceased.

            "domestic relationship" means a personal relationship between 2 adults (other than a relationship
            between spouses) in which 1 provides personal or financial commitment and support of a domestic
            nature for the material benefit of the other.

            "eligible partner", in relation to a deceased person, means a person other than the person's legal spouse
            who-
            (a) whether or not of the same gender as the deceased, lived with the deceased at any time as a
                  member of a couple on a genuine domestic basis; and
            (b) either-
                   (i) had lived with the deceased in that way for 2 or more years continuously; or
                   (ii) is the parent of a child of the deceased.

            "legal spouse", in relation to a deceased person, means a person who was the wife or husband of the
            deceased at any time during the life of the deceased.

            "spouse", in relation to a deceased person, means-
            (a) a legal spouse of the deceased; or
            (b) an eligible partner of the deceased.

comment     The definitions of spouse, legal spouse, and eligible partner are very similar to the definitions contained
            in the Administration and Probate Act 1929. The definition of eligible partner treats all partners of the
            deceased in the same way, regardless of whether they are of the same gender or otherwise. As with
            the Administration and Probate Act, however, there may be a difference in treatment in how the
            reference to "a parent of a child of the intestate" will apply. The term parent must assume its ordinary
            meaning of legal parent. This has a discriminatory application as there is currently no mechanism for the
            same sex partner of the (biological) child of the deceased to be concurrently recognised as a legal
            parent. Similarly, if the same sex partner was the biological parent of the child, there is currently no
            mechanism for the deceased to be concurrently recognised as a legal parent.

            A critical difference between the relationships recognised under the Administration and Probate Act and
            the Family Provision Act is that the latter recognises an additional category of domestic partner for family
            provision purposes. "Domestic partner" is defined as meaning a person who lived with the deceased in
            a domestic relationship for 2 years continuously at any time during the life of the deceased. Domestic
            relationship has the broad definition derived from the Domestic Relationships Act 1994 (although note
            that the definition in that Act does not require that the parties live together). The definition of eligible
            partner is largely a subset of the broader definition of domestic partner. The critical difference between
            the two is in the fact that the existence of a child of the deceased will mean that a relationship of less
            than two years will be recognised under the eligible partner definition, where it would not be recognised
            under the domestic partner definition.

            Section 7 - Eligibility - sets out who is entitled to make application to the Supreme Court for provision out
            of the estate of a deceased person as being:
             (a) a spouse of the deceased person;
             (b) a domestic partner of the deceased person;
             (c) a child of the deceased person;
             (d) a stepchild of the deceased person;
             (e) a grandchild of the deceased person;
              (f) a parent of the deceased person.

            Again, the legal recognition of the child of a same sex partner of the deceased as a "child of the
            deceased" is an area where this provision may have a discriminatory application. Similar issues arise
            with other familial relationships such as "grandchild" etc.

 change?    Consideration should be given to changing definitions so that they are expressed consistently with the
            definition of "domestic partner" in the Legislation Act 2001 while maintaining the broad application of the
            Act . Consideration should also be given to ensuring that familial relationships are recognised in an
            inclusive way for the purposes of the Act.




                                                                                                                            48
       74   Instruments Act 1933                                                          Agency    DJCS       Stage     2

  section   s.12 Household furniture

provision   (1) Where a person is married and living with his or her wife or husband, and a bill of sale comprises
            any household furniture, the bill of sale shall not be enforced by seizure or sale of any such furniture as
            then is actually in use by the person making or giving the bill of sale or his or her wife or husband, as the
            case may be, unless endorsed according to the required form by the wife or husband of the maker or
            giver of the bill of sale, and the endorsement is attested according to s. 8 (b) of the Statutory
            Declarations Act 1959 of the Commonwealth.
            (2) Provided that this section shall have no effect after the death of the wife or husband, or if, after the
            making or giving of the bill, the husband and wife live apart pursuant to a decree, order, or deed of
            separation, or if a decree for the dissolution or nullity of their marriage has been made.

comment     This provision is not discriminatory in that it treats all unmarried couples in the same way regardless of
            whether they are in a de facto relationship or a same sex relationship.

            The intention of the provision is to protect the household furniture of a married couple. Other unmarried
            couples, be they in a same sex or opposite sex relationship, live in a similarly mutually dependent
            situation and it would seem unfairly discriminatory not to provide the same protection.

 change?    Consideration should be given to extending the application of the section to all domestic partners.




       75   Instruments Act 1933                                                          Agency    DJCS       Stage     2

  section   s. 8 Definitions

provision   "bill of sale" is defined for the purposes of this Act to exclude, amongst other things, a marriage
            settlement.
            This Act provides for the making of and dealing with instruments and securities.
comment
            Marriage settlements are conveyances of property for the benefit of the parties to, and the prospective
            issue of, a marriage. These are no longer in general use, but may still occur.


 change?    Further research is required on the continuing use and need for this provision.




                                                                                                                             49
       76   Land (Planning and Environment) Act 1991                                      Agency     DUS       Stage     2

  section   s. 180 Transfer of land subject to building and development provision

provision   This section restricts the transfer or assignment of a lease of Territory land as follows:
            (1) Where a lease of Territory land contains a building and development provision, the lease, or an
                    interest in the lease, is not capable of being assigned or transferred, either at law or in equity
                    unless-
               (a) the lessee has died; or
               (b) the transfer or assignment is made pursuant to an order of the Family Court of Australia or
                      another court having jurisdiction under the Family Law Act 1975 (Cwlth); or
               (c) the transfer or assignment occurs by operation of, or pursuant to, bankruptcy or insolvency; or
               (d) the lessee has obtained-
                (i) the consent of the Minister under the City Area Leases Act 1936, section 28 as in force at any
                        time before 19 December 1973; or
                (ii) a certificate of compliance under section 179; or
                (iii) the consent of the Minister under subsection (2).


comment     The exception in paragraph (b) in relation to a transfer or assignment pursuant to an order of the Family
            Court has a restricted application.

            Currently, married couples can seek orders from the Family Court for the division of property assets on
            termination of a marriage, but de facto couples and same sex couples have to rely on action in the
            Supreme Court. The Commonwealth Government has recently indicated that it will accept a reference of
            power from the States to allow de facto couples access to the Family Court on the same basis as
            married couples, but has refused to accept a reference in respect of same sex couples.

            There are a variety of ways in which the transfer or assignment of property between separating couples
            can occur. The Duties Act 1999, for example, has provisions relating to transfers of property not only
            pursuant to an order of the Family Court, but also other courts and also pursuant to financial agreements
            under the Family Law Act 1975 (Cwlth) and termination agreements under the Domestic Relationships
            Act 1994.

            Consideration should be given to the need to extend this exception.

 change?    Consideration should be given to extending the exception in paragraph 180(1)(b) to include a transfer
            that is required by order of the Supreme Court made under the Domestic Relationships Act 1994.




       77   Land Titles Act 1925                                                          Agency    DJCS       Stage     2

  section   s.6 Interpretation for Act

provision   Definition: "transmission" means the acquirement of title to or interest in land consequent on the death,
            will, intestacy, bankruptcy, insolvency or marriage of a proprietor.
            The inclusion of transmission on the marriage of a proprietor in this definition seems to have a basis in
comment
            the old common law rule that upon marriage, a wife's property automatically vested in her husband.

            Section 134 of the Act, which dealt with transmission of land on the marriage of a female registered
            proprietor, was repealed in 1986 by the Sex Discrimination (Miscellaneous Amendments) Ordinance
            1986. The reference to transmission on marriage is no longer relevant.

 change?    Omit reference to marriage from definition of transmission.




                                                                                                                             50
       78   Magistrates Court Act 1930                                                   Agency    DJCS      Stage      2

  section   s.58 Defendant and husband or wife, when competent in criminal proceedings

provision   (1) Every accused person in a criminal proceeding, and the husband or wife of the accused person shall
                  be competent, but not compellable, to give evidence in the proceeding.
            (2) No such person shall be liable-
                (a) to be called as a witness on behalf of the prosecution; or
                (b) without the leave of the court, to be questioned on cross-examination as to his or her previous
                     character or antecedents.


comment     This privilege given to husband and wife is based on the intimate relationship they have, and the
            damage that could be caused to the relationship, and family if any, if it did not exist.

            The provision has an extended application in the Evidence Act 1995 (Cwlth):
            12 Competence and compellability
            Except as otherwise provided by this Act:
              (a) every person is competent to give evidence; and
              (b) a person who is competent to give evidence about a fact is compellable to give that evidence.

            18 Compellability of spouses and others in criminal proceedings generally
            (1) This section applies only in a criminal proceeding.
            (2) A person who, when required to give evidence, is the spouse, de facto spouse, parent or child of a
            defendant may object to being required:
                 (a) to give evidence; or
                 (b) to give evidence of a communication between the person and the defendant;
            as a witness for the prosecution.
            ....
            (6) A person who makes an objection under this section to giving evidence or giving evidence of a
            communication must not be required to give the evidence if the court finds that:
                 (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the
                      person, or to the relationship between the person and the defendant, if the person gives the
                      evidence; and
                 (b) the nature and extent of that harm outweighs the desirability of having the evidence given.

            Note that these Commonwealth provisions do not include a same sex partner of the defendant.

 change?    Consideration should be given to amending the Magistrates Court Act to extend the application of
            section 58 along the lines of section 18 of the Evidence Act 1995 (Cwlth) but to also include a same sex
            partner in addition to a de facto spouse.




                                                                                                                            51
       79   Nature Conservation Act 1980                                                  Agency    DUS       Stage   2

  section   s.74AG Extension of time for pensioners

provision   (1) A pensioner on whom an infringement notice or a final infringement notice is served may, within the
            relevant period, apply for an extension of the relevant period.

            (6) In this section:
            "pensioner" means a person who holds, or who is entitled to hold, a pensioner concession card issued
            by the Commonwealth, or, if that card is superseded, any later replacement for that card.


comment     This definition of "pensioner" relies on Commonwealth legislation definitions of pensioner. This
            Commonwealth legislation is discriminatory in application. Under the Social Security Act 1991 (Cwlth)
            for example, a person in a same sex relationship is not eligible for a wife pension under part 2.4, a
            widowed person allowance under part 2.7, or a widow B pension under part 2.8 notwithstanding that but
            for the sex of their deceased partner, they would otherwise be eligible. (Note that the sole parent
            pension has been replaced with the parenting payment under the Social Security Act).

            Similarly, paragraph (b) refers to a service pensioner within the meaning of the Veterans' Entitlements
            Act 1986 (Cwlth). A service pension under that Act includes persons receiving a war widow or war
            widower pensioner. Again, the Commonwealth Act excludes people in a same sex relationship from
            receiving these type of pensions.

            The effect of having the definition of pensioner reliant on the criteria in Commonwealth legislation is
            persons who, but for the fact that their partner is of the same sex, are not eligible to apply for an
            extension of time to pay an infringement notice.

 change?    This provision should be considered in the general context of reliance on discriminatory Commonwealth
            legislation to define "pensioner" for the purposes of ACT law.




                                                                                                                          52
       80   NRMA-ACT Road Safety Trust Act 1992                                            Agency    DUS       Stage   2

  section   Schedule 1 Form of deed of trust

provision   "Associate", in relation to a trustee, means:
            (a) a relative of the trustee or of his or her spouse; or
            (b) an employer of the trustee or of his or her spouse; or
            (c) a partner of the trustee or of his or her spouse; or
            (d) if an employee or partner referred to in paragraph (b) or (c) is a company-any body corporate that is
                  related to the company within the meaning of the Corporations Law;
            (e) an employee of the trustee or of his or her spouse; or
            (f) a company of which the trustee or his or her spouse is a director, secretary or executive officer or in
                  which the trustee or his or her spouse is a substantial shareholder within the meaning of Part 6.7 of
                  the Corporations Law, or a body corporate that is related to such a company within the meaning of
                  that Law;

            "Relative", in relation to a person, means any of the following:
            (a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child
                 of the person;
            (b) the spouse of a person referred to in paragraph (a).

            "Spouse", in relation to a person, includes anyone who, although not legally married to the person, is
            living with the person in a domestic relationship as the husband or wife of the person.


comment     These definitions have relevance for the purposes of clause 6.20 of the Trust Deed which provides that
            no money available for investment shall directly or indirectly be invested in or lent to a trustee or to any
            person who is an Associate of a trustee.

            This clause does not confer a benefit and as such, is not discriminatory in the sense that it treats a same
            sex partner unfavourably. The legislation is discriminatory in that it treats a same sex partner differently
            to a de facto partner.

            This clause is concerned with probity and that intention would be more fully served by referencing same
            sex partners on the same basis as a spouse. As the Schedule simply restates the Agreement, the trust
            deed itself would need to be amended.

 change?    Consideration should be given as to whether it would be appropriate to amend the trust deed with the
            NRMA to give better effect to the probity intentions of the deed.




                                                                                                                           53
       81   Parental Leave (Private Sector Employees Act )1992                             Agency     CMD         Stage   2

  section   s. 5 Parental Leave

provision   An employee to whom this Act applies is entitled to the same entitlements in respect of parental leave as
            those provided for in the draft parental leave clause set out in the parental leave case decision,
            attachment A.

comment     The parental leave entitlements that are referred to in this provision have limited application. The
            entitlement is to maternity leave for the mother of the child, and paternity leave for the father of the child.
            The test case relies on the concept of one mother and one father in relation to a child and there is no
            entitlement to general parental leave for a second mother /father. For example, in a lesbian relationship,
            the birth mother of a child would be eligible for maternity leave, but her female partner would not be
            eligible for any leave equivalent to paternity leave.

            In applying the parental leave entitlements as set out in the test case, the Act is discriminatory.

            The Act only applies to employees who are not subject to an industrial award, or who are covered by an
            award that does not provide for parental leave and does not exclude parental leave.

            The substantive issue of who is eligible for parental leave is a decision for the Industrial Relations
            Commission. The Act merely applies that decision to persons who are not covered by a relevant
            industrial award. To change the Act so that it does not have a discriminatory application with respect to
            same sex relationships may go beyond the purpose of simply applying the decision.

 change?    Consideration should be given to whether it would be appropriate to extend the application of the award
            in respect of people NOT covered by the award noting that persons who ARE covered by the award are
            outside the sphere of ACT influence.




       82   Periodic Detention Regulations 1995                                            Agency    DJCS         Stage   2

  section   r. 13 Information relating to detainees

provision   The manager of a detention centre shall cause the following particulars to be recorded in respect of a
            detainee who reports to the detention centre for the first time in compliance with an order for periodic
            detention:
            ...name and residential address of next of kin


comment     Next of kin is not specifically defined for the purposes of the Act and as such, the expression would
            assume its common law meaning. That is, the nearest blood relatives.

            On the assumption that this particular information is required for notification and possibly consent
            purposes, it It is questionable whether the next of kin relationship is the most appropriate in all
            circumstances. For example, if the next of kin is a two year old child, it is difficult to see why this
            information would be required in preference to information about the detainee's spouse, de facto spouse
            or same sex partner.

            Depending on the purpose for which this information is sought, it may be appropriate for next of kin to be
            replaced with "a person who may be used as an emergency contact" or similar.

            If the purpose is to seek information on a person who may be able to consent to medical treatment if the
            detainee is unable to do so, then this person may not be the same as an emergency contact person. For
            example, a same sex partner will not be able to consent to medical treatment unless the detainee has
            signed a power of attorney for this purpose.

            Subject to clarification of the purpose for which the next of kin information is required, the legislation
            could be amended to either:
            (a) define "next of kin"; or (b) substitute "a person who may be contacted in case of an emergency; and/
            or (c) substitute "a person who is able to consent to medical treatment if the detainee is unable to do so".

 change?    Consider need to clarify meaning of next of kin.




                                                                                                                              54
       83   Public Baths and Public Bathing Act 1956                                      Agency     DUS      Stage   2

  section   s.18 Segregation of sexes in public baths

provision   Section 18 provides that except for the purpose of giving assistance in the case of emergency, a person
            who has attained the age of 6 years shall not, without lawful excuse, enter a part of any public baths
            which is set apart for the exclusive use of persons of the sex opposite to the sex of that person and
            bears a notice to that effect. Maximum penalty: 1 penalty unit.

            Section 30 - Segration of the sexes in a public bathing convenience - is of the same effect. This section
            provides that except for the purpose of giving assistance in case of emergency, a person who has
            attained the age of 6 years shall not, without lawful excuse, enter a public bathing convenience, or a part
            of a public bathing convenience, which is set apart for the exclusive use of persons of the sex opposite
            to the sex of that person and bears a notice to that effect. Maximum penalty: 1 penalty unit.

            Note that 1 penalty unit = $100.

comment     The provision of facilities for persons of a particular sex may in practice have a discriminatory application
            to transgender or intersex people. As a matter of practice, it would seem reasonable that a such a
            person should be free to choose which facility is most appropriate to their gender identity. The fact that
            an offence may hang off that choice indicates that an amendment is necessary.

            There are several options for amendment. Consideration should be given as to whether it is necessary
            to maintain such an offence under ACT law. If it is necessary to maintain such a law, consideration
            should be given to defining what is meant by sex, particularly with reference to people who may not fit
            readily into the male/female dichotomy.

 change?    Consider need to retain these provisions, and if necessary, define term "sex".




       84   Public Trustee Act 1985                                                       Agency    DJCS      Stage   2

  section   s. 38 Powers of public trustee as manager

provision   Unless the court in a particular case otherwise orders, the public trustee as manager of property under
            this part may....
            (e) apply the property, or any moneys received by the public trustee as manager of the property, for the
            maintenance, education, advancement or benefit of the spouse, children or other dependants of the
            owner of the property.

            Section 39 - Application for directions and sale of property in special circumstances - is a follow on
            provision:
            Where the public trustee manages a property under the Part, the spouse, a child or any other person
            who is a dependant of the owner of the property to which the application relates may apply to the court
            for directions about the property.


comment     This provision contains no definition of "spouse" and hence the term would assume its ordinary meaning.
            The provision is not discriminatory in that it treats all persons who are not married in the same way
            regardless of whether they are in a same sex or opposite sex relationship - ie. they are not directly
            reflected in the powers of the public trustee. Such persons may, however, be included by virtue of being
            an "other dependant".

            Consistency with the Administration and Probate Act 1929 would indicate that the provision should be
            amended to include reference to eligible partners within the meaning of that Act.

 change?    Consideration should be given to amending the provisions so that they are consistent with the
            Administration and Probate Act 1929 in respect of recognising all unmarried eligible partners of a
            deceased.




                                                                                                                            55
       85   Radiation Act 1983                                                           Agency   DHCC       Stage   2

  section   s.33 Records to be kept

provision   (2) A licensee who employs radiation workers, or the person in charge of licensed premises where
            radiation workers are employed, shall keep on the licensed premises a record in a form approved by the
            council showing-
            (a) the full name, address, age and sex of each radiation worker; ...


comment     This purpose behind including "sex" as an information item in this provision is unclear on the face of the
            legislation.

            The main purpose of the records that are required under this section relates to the exposure of radiation
            workers to radiation. The effective dose levels specified in the regulations do not make any distinction
            between male and female workers, but does specify a particular dose level for unborn children. The sex
            of a radiation worker would be relevant for these purposes.

            The requirement to specify a sex may, however, have a discriminatory application to a worker who is a
            transgender or intersex person.

 change?    Consider the purpose of recording the sex of workers and if necessary, consider the need to refine the
            record keeping requirements to more accurately reflect that purpose.




                                                                                                                         56
       86   Rates and Land Rent (Relief ) Act 1970                                          Agency     DOT       Stage    2

  section   s.2 Definitions for Act

provision   "domestic partner", in relation to a pensioner, means a person who provides personal or financial
            commitment and support of a domestic nature for the material benefit of the pensioner, although not
            legally married to the pensioner, and includes a de facto husband or wife.

            "pensioner" means-
            (a)     a person to whom, or in respect of whom, 1 of the following pensions or allowances under the
            Social Security Act 1991 (Cwlth) is being paid:
                    (i)      an age pension under part 2.2;
                    (ii)     a disability support pension under part 2.3;
                    (iii)    a wife pension under part 2.4;
                    (iv)     a carer pension under part 2.5;
                    (v)      a sole parent pension under part 2.6;
                    (vi)     a widowed person allowance under part 2.7;
                    (vii)    a widow B pension under part 2.8;....
            (c) a service pensioner within the meaning of the Veterans' Entitlements Act 1986 (Cwlth);


comment     The definition of "domestic partner" is intended to pick up the concept of a domestic relationship
            consistently with the Domestic Relationships Act 1994 (stated in the Presentation Speech for the
            amendments). The definition is slightly confusing in its coverage due to the inclusion of the phrase
            "although not legally married to the pensioner". It is arguable that the inclusion of this phrase indicates
            an intention that the definition only includes marriage type relationships and not the full range of
            domestic relationships under the Domestic Relationships Act.

            Paragraph (a) of the definition of "pensioner" relies on the Social Security Act 1991 (Cwlth) which is in
            itself discriminatory in application. For example, a person in a same sex relationship is not eligible for a
            wife pension under part 2.4, a widowed person allowance under part 2.7, or a widow B pension under
            part 2.8 notwithstanding that but for the sex of their deceased partner, they would otherwise be eligible.
            (Note that the sole parent pension has been replaced with the parenting payment under the Social
            Security Act).

            Similarly, paragraph (b) refers to a service pensioner within the meaning of the Veterans' Entitlements
            Act 1986 (Cwlth). A service pension under that Act includes persons receiving a war widow or war
            widower pensioner. Again, the Commonwealth Act excludes people in a same sex relationship from
            receiving these type of pensions.

            The effect of having the definition of pensioner reliant on the criteria in the Social Security Act is that the
            Minister does not have the power under section 3 to defer the payment of rent or rates for certain
            owners, who, but for the fact that their partner is of the same sex, would be eligible pensioners.
            Similarly, such a person would also not be eligible for rebates under part 3 of the Act.

            While the definition of "pensioner" could be amended to also include a person who "but for" the sex of
            their partner would be eligible for a wife pension, widowed person allowance, a widow B pension, or a
            service pension, consideration would need to be given to the likely number of persons affected, the likely
            benefits, and the likely cost of attempting to duplicate the assessment processes in the relevant
            Commonwealth legislation.

 change?    Consideration should be given to clarifying the intention of "domestic partner" and, if appropriate, using
            the new standard definition of domestic partner in the Legislation Act 2001 to replace "spouse or
            domestic partner" where it currently occurs in the Act.

            The feasibility of having a modified definition of pensioner to include people whose relationships are
            excluded by the definitions in the relevant Commonwealth legislation needs to be assessed.




                                                                                                                              57
       87   Road Transport (Driver Licensing) Regulations 2000                               Agency     DUS       Stage      2

  section   s.14 Driver Licence Register

provision   (1) The road transport authority must record the following matters in the driver licence register in
            relation to each driver licence it issues:
             ...(c) the person's sex and date of birth.....

comment     This provision has a potentially discriminatory application to intersex and transgender persons. As a
            matter of administration, the sex of a person that is recorded on the Register should be the sex
            nominated by the licensee. There may be difficulty, however, where the sex that is nominated by the
            licensee is at odds with the sex that is on a document (such as a birth certificate) that is used as proof of
            identity to obtain a driver's licence.

            Information about a person's sex is no longer included on the actual licence that is issued to a licensee
            and it is arguable that this information is also irrelevant for the purposes of the driver licence register.

            Section 6 of the Act - Functions of road transport authority - provides in this respect that it is a function of
            the Road Transport Authority to "provide information about drivers in accordance with this Act and other
            laws in force in the Territory".

            It is not clear whether information about a person's sex might be something about which the Road
            Transport Authority might be required to provide information "in accordance with a law".

 change?    Consideration should be given to the need to retain information about sex on the driver licence register.




       88   Road Transport (Public Passenger Services) Regulations 2002 Agency                          DUS       Stage      2

  section   r.50 Concession tickets for buses

provision   (1) A person must not travel in a bus using a concession ticket unless the person is entitled to use the
            concession ticket.
            Maximum penalty: 5 penalty units.
            (2) A bus driver, police officer or authorised person may require a person who uses (or attempts to use)
            a concession ticket to travel on a bus to produce satisfactory evidence (for example, a student or
            pensioner concession card) that the person is entitled to use the ticket to travel on the bus.
            (3) A person must not, without reasonable excuse, fail to comply with a requirement under subregulation
            (2).
            Maximum penalty: 5 penalty units.


comment     While this provision does not itself stipulate who is entitled to a concession fare, it does reflect that this
            entitlement will rely to a certain extent on Commonwealth definitions of "pensioner". As noted in the
            discussion on the Rates and Land Rent (Relief) Act 1970, this may have discriminatory application.

 change?    The issue of eligibility for concession travel on buses should be considered in the general context of
            reliance on discriminatory Commonwealth legislation for definitions of "pensioner".




                                                                                                                                 58
       89   Supreme Court Act 1933                                                       Agency    DJCS      Stage   2

  section   s.37U Resident judges

provision   This section sets out the entitlements of persons who are appointed as resident judges while another
            resident judge holds office as a judge of the Federal Court.
            The section provides that such a person is entitled to the same remuneration, allowances and
            entitlements as judges of the Federal Court are entitled to from time to time. In particular, section 37U(3)
            provides that the Judges' Pensions Act 1968 (Cwlth) and the Judges (Long Leave Payments) Act 1979
            (Cwlth) apply in relation to such a person.


comment     This provision was included in the Act in 1998 to ensure that resident Judges appointed to the Supreme
            Court after 1 July 1992 were employed with the same remuneration, allowances and entitlements as
            Judges commissioned before that day. Prior to the transfer of administrative responsibility for the Court
            from the Commonwealth to the Territory in 1992, Supreme Court resident Judges were appointed to both
            the Supreme and Federal Courts. Section 29A(2) of the ACT Self-Government (Consequential
            Provisions) Act 1988 (Cwlth), provides that such a person (ie. a pre-1 July 1992 appointment) is to hold
            office on terms and conditions (being terms and conditions determined under section 73 of the Australian
            Capital Territory (Self-Government) Act 1988 (Cwlth) or under any enactment) that are not less
            favourable than those applicable to a Judge of the Federal Court of Australia. Resident Judges therefore
            received remuneration and allowances in their capacity as Federal Court Judges.

            This linking of the remuneration, allowances and entitlements for ACT Supreme Court judges to that of
            Federal Court Judges will cease when there are no longer any resident Judges holding dual
            appointments to the Federal Court.

            The reliance upon Commonwealth legislation to determine entitlements has a discriminatory effect. For
            example, the Judges' Pensions Act 1968 (Cwlth) does not recogise same sex partners. Sections 7 and
            8 of that Act provide for the payment of a pension to a spouse where a judge dies. Spouse includes a de
            facto spouse but would not include a same sex partner.

            The Judges (Long Leave Payments) Act 1979 (Cwlth) provides in section 5 for the payment of long leave
            entitlements to be paid on the death of a judge to his or her "widow or widower" of the Judge, or his or
            her dependents, or his or her legal personal representative. A widow or widower does not include either
            a de facto spouse or same sex partner.

 change?    Consideration should be given to amending the Act so that the entitlements under Commonwealth
            legislation apply to ACT Supreme Court judges in a non-discriminatory way. This should include
            consideration of how this might apply to those judges who hold dual appointments in the Federal Court.




                                                                                                                           59
       90   Supreme Court Rules 1937                                                      Agency    DJCS       Stage    2

  section   occurrences of "spouse"

provision   O.10 R.9 - Service of documents on both spouses (Service)
            If both spouses in a relationship are defendants in a proceeding, both spouses must be served with any
            document to be served on them in the proceeding, unless the court otherwise orders.

            O.22 R.4 - Husband and Wife (Joinder of Causes of Action)
            Claims by or against husband and wife may be joined with claims by or against either of them separately.

            O.43 R.22 - Execution by leave of court (Execution)
            where a husband is entitled or liable to execution on a judgment or order for or against a wife...the party
            alleging himself or herself to be entitled to execution may apply by summons for leave to issue execution
            accordingly

            There are also references to "spouse" in Order 72 - Administration and Probate:
            O.72 R.15 - Application by creditors
            O.72 R.18 - Notice to other next of kin
            O.72 R.60 - Application to collect and administer

comment     The term "spouses" in Order 10 Rule 9 is not defined and thus would assume its ordinary meaning - ie. a
            husband and wife. This particular rule would seem to be related to the common law rule that the
            husband and wife were one person.

            In relation to the rules concerning administration and probate matters, the terms used in all of the rules in
            order 72 are defined to refer to the terms used in the Administration and Probate Act 1929. That is, the
            "spouse" is defined for the purposes of these particular rules to mean a legal spouse of an eligible
            partner. These particular rules may need to be considered if there is a change to the terminology used in
            the Administration and Probate Act.

            The rules also contain multiple provisions that refer to "next of kin", "heir" and "heir-at-law". These
            terms have particular meaning and it may be appropriate to examine their use in the rules to determine
            whether a broader term might be desirable.

            The Supreme Court Rules are made by the resident judges of the court, and as such, the question of
            consideration of any amendments to the rules would need to be done by the resident judges.

 change?    The issue of possible amendments needs to be considered by the resident judges of the Supreme Court.




       91   Testamentary Guardianship Act 1984                                            Agency    DJCS       Stage    2

  section   s.2 Interpretation for Act

provision   "child" means a person who is not and has not been married, and has not attained the age of 18 years.

            Under section 12 of the Marriage Act 1961 (Cwlth), a person who has attained the age of 16 years but
comment
            has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an
            order authorising him or her to marry a particular person of marriageable age despite the fact that the
            applicant has not attained the age of 18 years.

            The definition has relevance to section 4 of the Act which provides that a parent or guardian of a child
            may, by will or codicil, appoint a person to be a guardian of the child.

            The Act is not discriminatory in this respect as it applies equally to all children who are unmarried, be
            they in a de facto relationship or same sex relationship.

 change?    Consideration should be given to the need to amend the "married child" exception to include a broader
            range of relationships.




                                                                                                                            60
       92   Transplantation and Anatomy Act 1978                                            Agency   DHCC       Stage   2

  section   s.4 Interpretation for Act

provision   Definition: "child" means a person who-
            (a) has not attained the age of 18 years; and
            (b) is not married.

comment      The definition of "child" has an unequal application where a person under the age of 18 years is in a
            same sex relationship. Under section 12 of the Marriage Act 1961 (Cwlth), a person who has attained
            the age of 16 years but has not attained the age of 18 years may apply to a Judge or magistrate in a
            State or Territory for an order authorising him or her to marry a particular person of marriageable age
            despite the fact that the applicant has not attained the age of 18 years.

            The legislation is not discriminatory in respect of its treatment of a deceased married child as it treats all
            unmarried couple relationships in the same way, whether they are opposite or same sex relationships.

            The effect of the definition is that the spouse of a married child who is deceased may consent to
            particular matters such as donation of organs, autopsy etc. whereas the domestic partner of a deceased
            person who is 16 but not 18 years has no legal say in these matters.


 change?    Consideration should be given to the need to amend the definition of spouse for all purposes under the
            Act to include a de facto spouse and a same sex partner.




       93   Trustee Act 1925                                                                Agency    DJCS      Stage   2

  section   s.45 Protective trusts

provision   This section deals with protective trusts, and subsection (6) in particular provides:
            (6) If the trust of the income fails or determines during the trust period, income during the rest of the trust
                 period is to be held on trust for application-
              (a) for the maintenance, support, or otherwise for the benefit of all or any 1 or more exclusively of the
                    other or others of the principal beneficiary and his or her spouse (if any) and his or her children or
                    more remote issue (if any) as the trustee in his or her absolute discretion thinks fit; or
              (b) if there is no spouse or issue of the principal beneficiary in existence, then for the maintenance,
                    support, or otherwise for the benefit of all or any 1 or more exclusively of the other or others of the
                    principal beneficiary and the persons who would, if he or she were actually dead, be entitled to the
                    trust property or the income of it or of the annuity fund (if any) or arrears of the annuity, as the
                    case may be, as the trustee in his or her absolute discretion thinks fit.

comment     There is no definition of spouse for the purposes of this Act and hence the term would assume its
            common law meaning - ie. a husband or wife. Income on trusts could not be applied for the benefit of
            either a de facto spouse or same sex partner under section 45(6)(a) . Income might, however, be
            applied for the benefit of such a person under section 45(6)(b) as such a person may be entitled to the
            trust property if the principal beneficiary were actually dead.

            The intention of provision is to apply income to the benefit of the principal beneficiary and his or her
            dependents. This intention would be served by recognising a de facto spouse and a same sex partner of
            the principal beneficiary.

 change?    Consideration should be given to amending the provision to refer to the domestic partner of the principal
            beneficiary.




                                                                                                                              61
       94   Trustee Companies Act 1947                                                   Agency    DJCS      Stage   2

  section   s.21 Order for account on application of trustee etc

provision   (1) A trustee, cestui que trust, executor, legatee, administrator, wife, husband, next of kin, creditor or
            child entitled to or interested in any estate that comes into the possession, or under the control, of a
            trustee company, who is, on application to the managing director or manager of the company, unable to
            obtain a sufficient account of the property or assets of which the estate consists and of the disposal and
            expenditure of or out of the property or assets, may apply to the Supreme Court or a judge, on motion or
            summons, after notice to the company, but without action or petition for an account.
            (2) If the Supreme Court or judge is of opinion that a sufficient account has not been rendered by the
            company, the court or judge may order the account to be rendered by the company that the court or
            judge considers just.

comment     This provision allows certain persons to apply to the Supreme Court to obtain an order requiring a trustee
            company to render an account for the property or assets of the estate administered by the trustee
            company. Included in those persons are a husband or wife.

            The provision is not discriminatory in that it does not recognise any non-marriage relationships, be they
            de facto relationships or same sex relationships. However, there is no reason why a such a domestic
            partner would not have the same interest in the administration of an estate.

 change?    Consideration should be given to broadening the list in this provision to include "domestic partner".




       95   Wills Act 1968                                                               Agency    DJCS      Stage   2

  section   s.28A Devises to transsexual persons

provision   (1) If-
               (a) there is in a will a direct or indirect reference to the sex of a person or class of persons; and
               (b) during the period between the making of the will and the death of the testator that person, or a
                    person who, but for this section, would have been within that class successfully undergoes sexual
                    reassignment surgery;
             then, unless the contrary intention appears from the will or from evidence admitted under section 12B,
             the will has effect as if the relevant person had not undergone the surgery.
             (2) In this section:
             sexual reassignment surgery-see the Births, Deaths and Marriages Registration Act 1997, part 4.

comment     This provision is an interpretative provision intended to preserve the validity of a bequest made to a
            person where the will has made reference to the sex of the person (eg. I leave to my three daughters...).

 change?    Consideration should be given to the need for any change to this section as a consequence of defining
            the term sex, or as a consequence of any change to part 4 of the Births, Deaths and Marriages
            Registration Act 1997. Consideration should also be given to the need for a new provision to recognise
            changed references to the sex of an intersex person as a result of their birth certificate being corrected
            under the Births, Deaths and Marriages Registration Act (as opposed to changed under part 4 of that
            Act).




                                                                                                                         62
       96   Wills Act 1968                                                                     Agency    DJCS       Stage     2

  section   Use of "spouse"

provision   There are two sections, s.15 - Will attested by beneficiary or spouse of beneficiary - and s.18 - Creditor
            to be admitted as witness - that address the validity of a will that is witnessed by a person with an
            interest in the property subject to the will.

            Section 15 provides that no will or testamentary provision of a will shall be void by reason only of the
            execution of the will having been attested by a person, or the spouse of a person, who has any interest
            in property subject to the will.

            Similarly, section 18 provides that where a testator, by will, charges real property or personal property
            with payment of a debt due to a creditor and the creditor, or the spouse of the creditor, attests the signing
            of the will, the creditor or spouse, is not, by reason of that charge, disqualified from being admitted as a
            witness to prove the execution, or the validity or invalidity, of the will.



comment     Sections 15 and 18 are similar in effect in rebutting a presumption that the fact that a person with an
            interest in a will has witnessed the execution of that will does not of itself affect the validity of the will.

 change?    Consideration should be given as to whether there is a need to specifically extend these provisions to
            cover de facto spouses and same sex partners.




       97   Wills Act 1968                                                                     Agency    DJCS       Stage     2

  section   s.20 Revocation of will by testator's marriage

provision   Sections 20 and 20A of the Act describe the effect of marriage, and the termination of marriage, on a
            testator's will.

            Section 20 deals with the testator entering into a marriage:
            (1) Subject to subsections (2) and (3), if a person marries after having made a will, the will is revoked by
            the marriage unless the will was expressed to have been made in contemplation of that marriage.

            s.20A is the complementary provision dealing with the effect of termination of marriage. Under
            subsection (1) of this provision, if, after a testator has made a will, the testator's marriage is terminated
            then the termination of a marriage has the effect of terminating any beneficial gift in favour of the former
            spouse of the testator. The section goes on to specify the exceptions and interpretation of this general
            rule.


comment     The underlying logic behind these provisions is that the act of marriage is a clear indication of an
            intention to support and maintain the spouse - including after death. This duty to maintain a spouse is
            also supported by law. Similarly, terminating a marriage is a clear indication of changed intentions in
            relation to a former spouse.

            These provisions only apply in respect of a marriage, and there are no similar provisions relating to de
            facto relationships or same sex relationships.

            It is arguable that similar provisions might be appropriate in respect of two people who enter a domestic
            relationship agreement within the meaning of the Domestic Relationships Act 1994, or perhaps a
            termination agreement under that Act. This may, however, draw an unreasonable link between these
            agreements and wills as a domestic relationship agreement might have an entirely different purpose to
            marriage in the eyes of the parties to the agreement.

            Consideration might also be given to these provisions in the context of any scheme for registering civil
            unions in the ACT.

 change?    Consideration should be given to the possible application of these provisions to a broader range of
            domestic partnerships.




                                                                                                                                  63
       98   Wills Act 1968                                                                  Agency    DJCS      Stage   2

  section   s.8 Minors-testamentary capacity

provision   (1) Subject to this section and section 16, a will made by a minor is not valid.
            (2) A minor who is or has been married may make a valid will and may revoke a will, or a part of a will,
                that he or she has made.
            (3) A will made by a minor who may marry and that is made in contemplation of a marriage is, on the
                solemnisation of the marriage contemplated, valid.
            (4) If the Supreme Court, on an application by a minor under section 8A, makes an order in accordance
                with that section enabling the minor to make a will in the specific terms of a proposed will attached
                to the application, the minor may make a valid will in those terms.
            (5) If the Supreme Court, on an application by a minor under section 8B, makes an order in accordance
                with that section enabling the minor to revoke a will, or a part of a will, the minor may revoke the will,
                or the part of the will, in accordance with that order.
            (6) A minor who has made a will in accordance with an order of the Supreme Court under section 8A
                and who has not at any time been married may not revoke the will, or a part of the will, otherwise
                than in accordance with an order of the Supreme Court under section 8B.
            (7) This section has effect subject to section 9.


comment     Under section 12 of the Marriage Act 1961 (Cwlth), a person who has attained the age of 16 years but
            has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an
            order authorising him or her to marry a particular person of marriageable age despite the fact that the
            applicant has not attained the age of 18 years.

            The legislation is not discriminatory in respect of its treatment of a deceased married child as it treats all
            unmarried couple relationships in the same way, whether they are opposite or same sex relationships.

            Section 8 reflects the general position that is taken in legislation that a minor who has legally married has
            special capacity to do things that they would normally only be able to do on reaching the age of majority.


 change?




                                                                                                                             64
       99   Workers Compensation Act 1951                                                  Agency     CMD       Stage   2

  section   Dictionary

provision   The dictionary defines "spouse" as follows:
            "spouse", in relation to an injured or deceased worker, includes a person of the opposite sex to the
            worker who lives, or, in relation to a deceased worker, lived immediately before the worker's death, with
            the worker as the worker's spouse on a genuine domestic basis although not legally married to the
            worker.

            This definition is used in turn for the definitions of:
            "member of the family", in relation to a worker or an employer, means the grandchild, child, stepchild,
            adopted child, sister, brother, half-sister, half-brother, spouse, parent, step-parent, mother-in-law,
            father-in-law or grandparent of the worker or employer.

            "dependant" , of a dead worker, means an individual-
            (a) who was totally or partly dependent on the worker's earnings on the day of the worker's death or who
                  would, apart from the worker's incapacity because of the injury, have been so dependent; and
            (b) who was-
               (i) a member of the worker's family; or
               (ii) a person to whom the worker acted in place of a parent or who acted in place of a parent for the
                    worker.

comment     The definition of "spouse" is relevant to section 164(4) which provides that a person is not excused from
            providing information on the grounds of self-incrimination or incrimination of a spouse.

            The definition of "member of the family" has an application in section 9 - Who is not a worker - to the
            effect that, unlike an opposite sex partner in the same situation, a same sex partner of an employer will
            be regarded as a worker for the purposes of the Act. The definition means that this section has a
            discriminatory application.

            The definition of "dependant" is critical to the application of section 77 - Death benefits. On the death of
            a worker, the dependants of the worker are entitled to compensation under the Act. The exclusion of
            same sex partners from the definition of spouse means that such a person is also excluded from any
            potential compensation payment.

            The issue of recognition of parenting arrangments in same sex relationships also has a consequence in
            section 77. Unless a child of the same sex partner of a worker may legally be regarded as "a child of the
            worker", they also will not fall within the current definition of being a "member of the family" of the worker.

 change?    Consideration should be given to omitting the definition and using the more inclusive term "domestic
            partner" for the purposes of the Act. Consideration should also be given to whether it would be
            appropriate to define who is "a child of the worker" to take account of children for whom a worker is
            effectively a parent but is prevented by law from being recognised as such.




                                                                                                                              65
      100   Workers' Compensation Act 1951                                               Agency     CMD      Stage   2

  section   s.63 Loss of hearing because of age

provision   (1) This section applies in working out the percentage of the decrease of hearing in relation to
            boilermakers deafness of a worker who is the prescribed age or older, but does not apply to total hearing
            loss in either of the worker's ears.
            (2) For this part, it is to be conclusively presumed that the worker's loss of hearing to be attributed to
            loss of hearing because of age is 0.5 decibels for each complete year of the worker's age over the
            prescribed age.
            (3) For this section, the prescribed age is-
              (a) for a male-55 years old; or
              (b) for a female-65 years old.


comment     This section provides that in calculating the percentage of decrease in hearing for boilermakers, the age
            of the boilermaker will be relevant. In particular, the section provides that the presumption about loss of
            hearing because of age will be applied differently depending on whether the worker is male or female.

            The issue of how this presumption might apply to a transgender person, or even an intersex person,
            needs to be considered.

 change?    Consideration should be given to how this provision might apply to transgender or intersex persons.




                                                                                                                          66
 Focus Groups for Gay, Lesbian,
Bisexual, Transgender and Intersex
        People in the ACT
              March 2003




           Clare 0’Brien & Karen Rich


          O’Brien Rich Research Group

              ABN 59 086 741 845

                GPO Box 2473
               Canberra ACT 2601
               Mobile: 0401 699 224
EXECUTIVE SUMMARY .......................................................................................................................... 2


1.     BACKGROUND TO THE FOCUS GROUP CONSULTATION PROJECT............................... 7
        1.2 PURPOSE AND NATURE OF THE PROJECT ........................................................................... 7


2.     THE FOCUS GROUPS ...................................................................................................................... 9


3.     PROJECT FINDINGS ......................................................................................................................11
       3.1         DISCRIMINATION AND SAME SEX RELATIONSHIPS .................................................................11
       3.1.1         Recognition of same sex relationships in ACT legislation .......................................12
       3.1.2         The Discrimination Act 1991 and same sex relationships .......................................13

       3.2         DISCRIMINATION AND TRANSGENDER AND INTERSEX PEOPLE .............................................14

       3.3         REPRODUCTIVE AND PARENTING RIGHTS .............................................................................17
       3.3.1         Artificial Conception Act 1985 ......................................................................................19
       3.3.2         Surrogacy arrangements...............................................................................................19
       3.3.3         Transgender people and parenting .............................................................................20

       3.4         REGISTERING RELATIONSHIPS ..............................................................................................20

       3.5         ANTI-VILIFICATION LEGISLATION ............................................................................................22

       3.6         DEFENCE OF PROVOCATION – THE ‘GAY PANIC’ DEFENCE ...................................................23

       3.7         MEETING THE NEEDS OF TRANSGENDER PEOPLE .................................................................24
       3.7.1         Births, Deaths and Marriages Registration Act 1997................................................24
       3.7.2         Discrimination Act 1991.................................................................................................26
       3.7.3         Other legislative provisions...........................................................................................26

       3.8         INTERSEX PEOPLE AND ‘NORMALISING’ SURGERY ................................................................27

       3.9         POLICY, PROGRAMS AND PRIORITIES ....................................................................................28




                                                                      1
                       Executive Summary

Background

The ACT Government is considering possible changes to ACT laws and is
conducting a public consultation process on issues for gay, lesbian, bisexual,
transgender and intersex people in the ACT. The issues paper titled Gay,
Lesbian, Bisexual, Transgender and Intersex People in the ACT: an issues paper
is the focus of this consultation.

As one component of the consultation process the Department of Justice &
Community Safety commissioned a small series of three focus groups as follows:
   • gay, lesbian and bisexual people;
   • transgender people; and
   • intersex people.

The focus groups

Two separate focus groups were held – one for gay, lesbian and bisexual people
and one for transgender people. Despite considerable efforts to locate and attract
intersex people to attend a focus group this did not prove possible. Intersex
support groups confirmed the difficulty in attracting this group of people to a
public forum such as a focus group. Invitations were issued for intersex people to
conduct telephone interviews with guaranteed anonymity. Subsequently, two
interviews with intersex people were conducted. These interviews provided a
considerable amount of information concerning the views of intersex people on
the proposed changes to the ACT laws.

Project findings

1.      Discrimination and same sex relationships

Issue: Is the comparison between the legislative treatment of de facto relationships and same sex
relationships an appropriate comparison?

Participants felt, given the limitations of the ACT laws in respect to marriage
legislation, that heterosexual de facto relationships were a reasonable
comparison.

Recognition of same sex relationships in ACT legislation

Issue: Would there be any adverse outcomes if all ACT laws gave the same recognition to same sex
relationships that is given to opposite sex relationships?



                                               2
All participants expressed the view that people in same sex domestic
relationships ought to be entitled to equal treatment under the law to those in
opposite sex relationships.

The Discrimination Act 1991 and same sex relationships

Issue: Does the Discrimination Act 1991 provide adequate protection from discrimination for
people in same sex relationships?

Gay, lesbian, bisexual and transgender participants did not feel that they were
adequately protected from discrimination in their relationships under the current
provisions of the Discrimination Act 1991.


2.      Discrimination and transgender and intersex people

Issue: Is there a need to define “sex” for the purposes of ACT law? If so, should different definitions
apply for different purposes?

Transgender participants did not see sex or gender as a binary issue. They
identified a broad spectrum of gender identities. Most participants could see little
or no legislative rationale for defining sex in most circumstances. Should there be
a rationale for defining sex in particular circumstances, then participants believed
that the legislation should reflect a broader spectrum of gender identity than the
current male/female dichotomy.

Issue: Does the Discrimination Act 1991 provide adequate protection from discrimination for
transgender people and intersex people?

Participants were in agreement that transgender people were not adequately
protected by the Discrimination Act 1991. They pointed out that some individuals
may not identify as either male or female and that the legislation should take note
of this. They also pointed out that partners of transgender people were the
subjects of discrimination.

Intersex interviewees indicated that they felt the Act did not adequately protect
some intersex people.


3.      Reproductive and parenting rights

Issue: Should the Adoption Act 1993 be amended to provide that same sex couples are eligible to
adopt a child?


                                                  3
Participants agreed that the Adoption Act should be amended to allow for same
sex couples to adopt a child. They were of the strong view that sexual orientation
was irrelevant to a person’s capacity to be a good parent.

Artificial Conception Act 1985

Issue: Should the Artificial Conception Act 1985 be amended to recognise the non-birth mother in
a lesbian relationship as a parent of a child born through assisted reproductive technology?

Participants felt that the Artificial Conception Act should be amended to
recognise the non-birth mother in a lesbian relationship where the child is born
through assisted reproductive technology. They believed that the parenting rights
and responsibilities of the non-birth mother should be reflected in the law.

Surrogacy arrangements

Issue: Should the Artificial Conception Act 1985 be amended to allow same sex couples to apply
for a parentage order where a child is born pursuant to a substitute parent agreement?

This issue was not considered in any detail as none of the participants had any
experience of the situation. However, the group believed that the rights of a same
sex couple in this regard should be no different from the rights that currently exist
for opposite sex couples.


4.      Registering relationships

Issues: Is there a benefit in the ACT providing a mechanism to register same sex relationships in the
ACT? Should this also apply to opposite sex relationships? What consequences should flow from
this under ACT law?

The majority of participants thought that it would be beneficial to be able to
register same sex relationships in the ACT. They felt that by providing such a
mechanism the ACT government would be sending a message to society that
same sex relationships are valid.

Participants were also of the view that heterosexual people should be entitled to
register their relationships should they wish to do so.




                                                 4
5.      Anti-vilification legislation

Issue: Should the vilification provisions of the Discrimination Act 1991 be extended to prohibit acts
of vilification against gay, lesbian, transgender and intersex people, or people with HIV/AIDS?

Participants were of the view that making it explicit in the legislation that it is
unlawful to vilify or discriminate on the basis of sexuality or gender identity would
be an important addition to the legislation.


6.      Defence of provocation – the ‘gay panic’ defence

Issues: Should the defence of provocation be abolished in the circumstances of a non-violent
homosexual advance? Should the defence of provocation be abolished generally?

All participants were strongly of the view that the ‘gay panic’ defence should in no
way be used as a defence for murder. Some participants were concerned that
abolishing the defence of provocation altogether could be detrimental to women
who were victims of domestic violence.


7.      Meeting the needs of transgender people


Births, Deaths and Marriages Registration Act 1997

Issues: Are the provisions in part 4 of the Births, Deaths and Marriages Act 1997 appropriate?

There was strong agreement amongst transgender participants that the current
provisions of this Act are discriminatory and inadequate. The group believed that
it was discriminatory to restrict changes to birth certificates to those who were not
married and those who had undergone sexual reassignment surgery.

Other legislative provisions

Issues: What is the appropriate approach to meeting the needs of transgender people in respect of
sex segregated public facilities such as public baths? How should this approach also take into
account the needs of other users of such facilities?

Transgender participants suggested that in all cases respect for the comfort and
dignity of the person should be of paramount importance. Participants pointed
out that if they were unable to utilise the facilities of their lived gender identity
then they were afraid of possible violence. Ensuring separate change cubicles



                                                 5
were provided in all public bathing facilities appeared to be one simple method of
ensuring the privacy of the transgender individual and the general public.


Issues: The government welcomes submissions on how current legislative schemes are addressing
the needs of transgender people. Are there needs that are not covered by this issues paper that
should be addressed?

Transgender participants pointed out that they were often considered the third
tier behind gay and lesbian people when it came to public funding. Education and
awareness programs and health services were seen as particularly critical
funding areas.


8.      Intersex people and ‘normalising’ surgery

Issue: Is it necessary to regulate normalising surgery carried out on intersex children?

The intersex interviewees were strongly of the opinion that legislation should be
put in place to regulate ‘normalising’ surgery. They believed that surgery should
not be carried out except in cases of genuine medical need, that is, where a life
is at risk or the individual is suffering considerable pain.

Issues: Is the exception in section 77 of the Crimes Act 1900 appropriate? Should the exceptions
be limited to the “genuine therapeutic purposes” contemplated in section 76?

Intersex interviewees were strongly of the view that ‘normalising’ surgery which is
undertaken without the consent of the individual concerned should not be
condoned by the Crimes Act 1900.


9.      Policy, programs and priorities

Issues: Does the ACT Government need to take better account of the specific needs of lesbian, gay,
bisexual, transgender or intersex people in the ACT? Are there particular priority areas?

Transgender and intersex people in particular expressed a need for greater
education and public awareness programs around their issues. They pointed to
health / medical professionals and police as specific targets of these programs.




                                                  6
1.    Background to the                          focus         group
      consultation project
This report summarises the findings of focus groups with gay, lesbian, bisexual,
and transgender people, and individual interviews with intersex people. This
project represents one component of the ACT government’s consultation process
on possible changes to ACT laws.

The ACT Government is considering possible changes to ACT laws and is
conducting a public consultation process on issues for gay, lesbian, bisexual,
transgender and intersex people in the ACT. The issues paper titled Gay,
Lesbian, Bisexual, Transgender and Intersex People in the ACT: an issues paper
is the focus of this consultation.

The issues paper and the Legislation (Gay, Lesbian and Transgender)
Amendment Bill 2002 are the first stage of a law reform process to address
discrimination on the basis of sexuality or gender identity in the ACT.

The Department of Justice and Community Safety has reviewed all ACT
legislation to identify provisions that discriminate against same sex couples, or
against transgender people or intersex people. The review identified some 70
Acts and Regulations that contain provisions that potentially discriminate against
gay, lesbian, bisexual, transgender and intersex people, and that may need
amending.

The issues paper concentrates on existing ACT legislation. It does not examine
the law on matters such as marriage, superannuation, taxation and social
security over which the ACT Government has no control. While these are
significant matters in which same sex couples continue to face discrimination,
they are also matters that are legislated by the Commonwealth Government.
Under the Australian Capital Territory (Self-Government) Act 1988 the ACT
Legislative Assembly cannot make laws that are inconsistent with a
Commonwealth law that is in force in the ACT.

The Government is consulting on these issues before deciding on the most
appropriate way to progress these matters. Drafting of the second stage
amendments will proceed at a later stage in light of this consultation.

1.2   Purpose and nature of the project

The Department of Justice & Community Safety wished to establish the views of
key stakeholders on the matters raised in the issues paper through a small series
of three focus groups. The project brief requested that the focus groups be
organised into specific issue groups as follows:
   • gay, lesbian and bisexual people;


                                        7
   •   transgender people; and
   •   intersex people.

The Department was particularly interested in obtaining the views of groups that
are not prominent in the community.

An officer from the Department was made available at the focus groups to
provide any necessary clarification of the issues and to answer technical
questions.




                                       8
2.    The focus groups
Participants in the focus groups were recruited through a ‘rolling sample / word of
mouth’ approach and an existing email discussion group. The focus groups were
held in the evening in Departmental premises. Participants were given a payment
of $30 each as an incentive to attend and in acknowledgement of the time which
they had given to participation in the group. Light refreshments were also
provided.

The gay, lesbian and bisexual focus group
There was a great deal of interest in participation in this group, with many more
people indicating an interest than could be accommodated in a focus group
format. The group was confined to a total of fifteen people out of which thirteen
participants actually took part in the focus group. The participants were a good
mix of gender and sexual orientation, as required.

The transgender focus group
The response to the invitation to participate in the transgender focus group
began relatively slowly, but word of mouth gathered speed as the time for the
focus group neared. From a total of ten people who confirmed their intention to
attend some eight participants actually took part in the focus group. Participants
represented a continuum of gender identity, including male to female and female
to male transgender people as well as the partner of one of the participants.

The intersex telephone and face-to-face interviews
As anticipated in the response to the Department’s consultancy brief, it proved
extremely difficult to obtain sufficient numbers of intersex people who were
interested in taking part in a focus group. Recruitment efforts centred on several
chat / advocacy groups and individuals who it was expected would be able to
assist in the focus group recruitment process. Despite considerable efforts to
locate and attract intersex people to attend the focus group this did not prove
possible.

Intersex support groups confirmed the difficulty in attracting this group of people
to a public forum such as a focus group. Invitations were issued for intersex
people to conduct telephone interviews with guaranteed anonymity.
Subsequently, two interviews with intersex people were conducted.

Essentially, the intersex interviewees made the point that at least ninety percent
of intersex people live without question of their sex or gender unless they had
been raised inappropriately due to doctors mistakenly assigning the wrong
gender at birth. Hence, those who are aware of their intersex status are generally
reluctant to come forward for focus groups and the like because it is only when
they indicate that a difference exists that they are likely to experience
discrimination or any negative reactions.



                                        9
These interviews provided a considerable amount of information concerning the
views of intersex people on the proposed changes to the ACT laws. The intersex
people were of the view that the most important issues for their group concerned
discrimination and the use of ‘normalising’ surgery and much of the discussion
centred on these issues rather than the full gamut of the proposed changes.




                                      10
3.      Project findings
Group participants welcomed the opportunity to have a say in the ACT
government’s law reform process. The general view was that certain aspects of
the law were discriminatory to gay, lesbian, bisexual, transgender and intersex
people and that it was time to redress the issue and bring about equality under
the law. Whilst treatment of partnerships under the law was considered to be
very important, participants also emphasised the importance of the social and
civic rights of all individuals.

The view was expressed that it was very important for the states and territories to
take the lead in legislative reform to bring about equality. Whilst some of the
major issues that impact on the lives of these groups of people are under federal
government jurisdiction (for example, superannuation), participants felt that by
taking the first steps the ACT government, along with other states, could push
the federal government to make important changes.

Law reform was also important in sending a message to society that gay, lesbian,
bisexual, transgender and intersex people are equal to all other members of
society, and that it is not okay to discriminate against someone on the basis of
their sexual orientation or gender identity. In separating these groups of people
from the majority of society, the law was sending a message that they were not
entitled to the same rights as everyone else.

“We want to be considered normal, and that means having equal treatment under
the law – the same rights for all.”



3.1     Discrimination and same sex relationships

Issue: Is the comparison between the legislative treatment of de facto relationships and same sex
relationships an appropriate comparison?

The gay, lesbian and bisexual focus group
Gay, lesbian and bisexual participants were of the view that their relationships
should be treated in exactly the same way as heterosexual relationships under
the law. For many, this meant entitlement to marriage and all the rights and
responsibilities that flow from being married. Some expressed a view that whilst
they would not necessarily want to marry themselves, they thought it should be
an entitlement to all people regardless of sexuality. Whilst some were of the view
that anything less than being legally able to marry meant that gay, lesbian and
bisexual people were treated as ‘second class citizens’, it was recognised
amongst participants that this was an area of federal government law and that
the ACT could not make laws in this area.


                                              11
Given the limitations expressed above, most participants agreed that
heterosexual de facto relationships were a reasonable comparison as far as ACT
law was concerned. The view was expressed that if the ACT could at least
provide equal treatment for same sex partnerships as for heterosexual
partnerships then this would be a step forward for gay, lesbian and bisexual
people. Also, and importantly, equal recognition would send a message to
society and could begin a process of change that could influence federal laws
over time.

The transgender people’s focus group
As there were other, more significant issues which specifically related to
transgender people this issue was not canvassed to any extent during the
transgender people’s focus group. However, the general view was expressed
that same sex relationships should not be treated differently to opposite sex
relationships.

The intersex people’s interviews
The issue of same sex relationships was not relevant to the two individuals
interviewed, so the topic was not elaborated on during discussions. The
individuals expressed an opinion that people in same sex relationships ought to
be given equal treatment under the law to those in opposite sex relationships.

3.1.1 Recognition of same sex relationships in ACT legislation

Issue: Would there be any adverse outcomes if all ACT laws gave the same recognition to same sex
relationships that is given to opposite sex relationships?


The gay, lesbian and bisexual focus group
Gay, lesbian and bisexual participants did not see any adverse outcomes for
same sex relationships being given equal recognition to opposite sex
relationships.

Participants acknowledged that whilst there may be some benefits for some
couples in not having their relationship recognised - the case of social security
payments being specifically mentioned - overall the benefits of recognition would
far outweigh any disadvantages. Also, it was agreed that it was the principle of
equality that mattered, and that the ACT laws should definitely give equal
recognition to same sex relationships as existed for opposite sex relationships.

The transgender people’s focus group
Participants felt strongly that domestic partnerships should be recognised in the
law regardless of gender. Several members of the group had been or currently
were married. They pointed out, as discussed in more detail in the section on



                                              12
birth certificates below, that the current legislative situation required them to be
‘not married’ in order to have their transgender status recognised through being
issued a new birth certificate.

The intersex people’s interviews
This particular question was not relevant to the intersex people consulted.


3.1.2 The Discrimination Act 1991 and same sex relationships

Issue: Does the Discrimination Act 1991 provide adequate protection from discrimination for
people in same sex relationships?


The gay, lesbian and bisexual focus group
Gay, lesbian and bisexual participants did not feel that they were adequately
protected from discrimination in their relationships. Many of the concerns related
to parenting and reproductive rights, and these issues are discussed in a later
section.

One participant made the point that including gay, lesbian and bisexual
relationships within the domestic relationship legislation was not sufficient
protection against discrimination. The point was made that this legislation only
applied in the event of relationship break down or death, and that it did not
protect same sex couples from discrimination in their day to day lives.

Participants cited many examples of discrimination, but quite often these were of
a social nature and outside the direct influence of the law. It was noted that whilst
the law may not be able to protect against all possible instances of
discrimination, it was important nevertheless that legislation make a clear
statement that it is unlawful to discriminate against individuals or couples on the
basis of their sexual orientation.

The transgender people’s focus group
As there were other, more significant issues which specifically related to
transgender people this issue was not canvassed to any extent during the
transgender people’s focus group.

The intersex people’s interviews
This particular question was not relevant to the intersex people consulted.




                                            13
3.2 Discrimination and transgender and intersex
people

Issue: Is there a need to define “sex” for the purposes of ACT law? If so, should different definitions
apply for different purposes?

The transgender people’s focus group
A variety of views on the need to define ‘sex’ were expressed in the transgender
people’s focus group. Most agreed that they did not see sex or gender as a
binary issue. They identified a spectrum of gender identities.

Most participants could see no or very little legislative rationale for such a
restrictive, binary definition. One participant pointed out that our society has
moved beyond issues such as different rates of pay for men and for women and
it was difficult to understand why a reference to sex remained necessary at all.

Participants generally agreed that the current definitions of gender seemed to be
more about maintaining the social system rather than meeting a genuine
legislative need. They felt that removal of the definition would allow them to
maintain their dignity and self-esteem as well as upholding the rights of the
individual.

“We’re all human beings. Why does the law need to distinguish? People
shouldn’t be treated differently anyway.”

One participant suggested that changes to the ACT law that ceased to define
‘sex’ for legislative purposes would allow her to live her own life as she wished.
She said that these changes would allow her to feel more comfortable because
the change would suggest that the government is okay with people living their
own lives as they wish as long as they did not hurt others.

The need to have sex identified on government forms was also questioned. The
group pointed out that gender was no longer identified on driver’s licences in
Victoria. They said that the use of photo ID had made the need for identification
of gender in forms, etc, obsolete in most instances.

Participants accepted that there might be some instances where there could be a
valid reason for needing to define gender under the law. The focus group was
unable to determine any valid reasons other than those issues discussed under
the later section in this report Meeting the needs of transgender people – Other
legislative provisions.

One participant suggested that the legislation could specify the (few) situations
where it may be necessary / important to define gender for good and valid


                                                 14
reasons. This was seen as the opposite of the present situation, where it seemed
to the participants that the definition of ‘sex’ in the law was used without good
and valid reason and consequently to the detriment of their personal comfort and
dignity.

“There may be some situations where it is necessary to define sex but I would
like to see a clear rationale in these cases. And if in the defining, we could have
something broader than just male or female, that would be helpful. Something
reflecting all the shades of grey.”

There was strong agreement from all participants that the use of the term
‘opposite sex’ was a nonsense in their eyes. Other participants suggested that
they could not think of a single instance where the gender of the person should
make any difference to the treatment of the individual by the law.

Focus group participants identified an instance where they believed the law
negatively discriminated on the basis of the definition of gender - the difference in
treatment between rape and assault in the law. They indicated that if those
transgender people who considered their gender to be female, but were not
recognised as such by the law, were assaulted then the charge would not be
rape but would necessarily be the lesser charge of assault. They felt this to be
discriminatory and unacceptable.

The intersex people’s interviews
The view was expressed that the majority of people with an intersex condition did
not have issues around gender identity. That is, they saw themselves as a
particular gender and everyone around them saw them as that gender as well.
The point was made that intersex people are not obvious as having an intersex
condition – they look, act, feel and behave as a particular gender. For most
intersex people, they said, the question of whether or not the law defines sex
would have little relevance for them.

One person noted that in Victoria, intersex was included in the legislation as a
third sex and that this had relevance for the small proportion of intersex people
who felt themselves to be neither male nor female, or both male and female.
They felt that those intersex people for whom gender identity is an issue should
be able to have their gender legally recognised as intersex.

For those intersex people who were incorrectly assigned the wrong gender at
birth it is possible to have their birth certificates amended provided they have a
form signed by a doctor acknowledging that a mistake was made at birth. With
their birth certificate amended they had full recognition of their preferred gender
under the law.

On the question of definitions, the intersex people were of the view that the law
should distinguish between those with an intersex condition and transgender



                                         15
people. Those interviewed felt that their condition and the issues they faced as
intersex people were quite different to those of transgender people, and that
treating them as similar was not helpful. Whilst they supported the rights of
transgender people for equality and protection from discrimination under the law
they were of the clear view that intersex should be recognised for the specific
medical condition that it is. One of the people interviewed referred to a discussion
paper submitted to the ACT Department of Justice and Community Safety by the
Androgen Insensitivity Syndrome Support Group Australia (AISSGA). They noted
that the issue of distinction between intersex and transgender people was
discussed in some detail in that paper.

Issue: Does the Discrimination Act 1991 provide adequate protection from discrimination for
transgender people and intersex people?

The transgender people’s focus group
The focus group participants pointed out that the current legislation only provides
protection for discrimination against transsexual people. The issue of the need
for sexual reassignment surgery in order to be currently recognised for protection
is discussed in some detail below in the section on the Births, Deaths and
Marriages Act.

“I would like to see a world where the government has no problems with people
expressing themselves in whatever social or gender role they wish to have. I
would feel safer and more comfortable if this could be expressed in legislation.”

The group, in exploring ways to ensure that the Act protected all the relevant
groups, queried the idea of naming each and every group to be protected. They
suggested that an alternative approach may be to identify where discrimination
may be acceptable under the law and assume that it is not acceptable to
discriminate against any other groups or individuals. However, the group
understood that the function of the Act was to ensure that groups that were
particularly vulnerable to discrimination were protected and hence, were in
agreement that transgender people needed to be named in the Act. Participants
in the group pointed out that some individuals may not identify themselves as
either male or female and that the legislation should take note of this in the
interpretation of the Act.

Participants pointed out that partners of transgender people were also subject to
discrimination and vilification and should be included in the legislation. Several
instances of discrimination of the partner of a transgender person were cited
during the discussion.

The intersex people’s interviews
The intersex people interviewed believed that the majority of people with an
intersex condition did not experience discrimination directed at them as



                                            16
individuals. The interviewees pointed out that most people would be unaware of
their intersex condition.

However, as one interviewee pointed out, intersex people faced particular types
of discrimination such as discrimination from the medical profession. They
believed that there was a degree of social embarrassment about the intersex
condition and that this impeded acceptance of the condition by parents, and also
by society because of the secrecy that often surrounds the issue. Examples were
given of individuals being unaware that they had an intersex condition until later
in life. They might find out, for instance, when undergoing a fertility test because
they had not been able to become pregnant. In one case it was claimed the
doctor had withheld the information even from the parents. There were also
several known cases of the parents having not disclosed to the child the fact they
had an intersex condition. The individuals had found out later in life.

One of the interviewees referred again to the paper submitted by Androgen
Insensitivity Syndrome Support Group Australia (AISSGA) for a full discussion of
the particular types of discrimination experienced by intersex people.



3.3 Reproductive and parenting rights

The gay, lesbian and bisexual focus group
Gay, lesbian and bisexual participants felt that the area of reproductive and
parenting rights was one where they faced significant difficulty and
discrimination. Most felt that the options for gay and lesbian people wishing to
become parents were quite limited, and that changes to the law could certainly
provide greater choice for those wishing to become parents. There was also a
strong view that the law did not provide adequate protection in those gay and
lesbian relationships where children are involved.

“Many of us don’t consider parenting because the law is a minefield – we don’t
know where we will be protected.”

Issue: Should the Adoption Act 1993 be amended to provide that same sex couples are eligible to
adopt a child?



The gay, lesbian and bisexual focus group
Gay, lesbian and bisexual participants agreed that the Adoption Act should be
amended to allow for same sex couples to adopt a child. Participants were of the
strong view that sexual orientation was irrelevant to a person’s capacity to be a



                                              17
good parent. What mattered, they pointed out, was a couple’s capacity to provide
a loving, secure environment for a child. Whether the parents were gay, lesbian,
bisexual or heterosexual has no bearing on their capacity to be good parents.

“We would like the legislation to reflect that competency as a parent is not based
on sexuality.”

There are several circumstances in which gay, lesbian or bisexual people may
wish to adopt a child. One is where a couple, male or female, may wish to adopt
a child together. Another is where one partner is the biological parent of a child
and they wish for the other partner to be able to adopt so that they can both be
the legal parents of the child.

In the case of two people wishing to adopt, participants expressed a view that
more couples would choose to adopt children if the option were available to
them.

The fact that many in the wider community did not consider adoption by gay and
lesbian parents as normal was also seen as a significant impediment. Some
participants were of the view that legislative reform of adoption rights would help
to normalise the concept of gays and lesbians as parents.

“Once things are accepted as law, then this can change attitudes. As far as
parenting goes, the law (as it currently stands) reflects biological possibilities…it
doesn’t accommodate variations from the norm.”

Participants also felt strongly about the importance of the law enabling an
individual to adopt where one partner in the relationship was already the parent
of a child. As some pointed out, it is the rights of the child as well as the rights of
couples which need to be protected. People expressed concern that there was
currently no protection for the non-biological parent or the child in a situation
where the biological parent dies or is incapacitated. Under the law, the child or
children would go to the other biological parent, even if this were against the
wishes of the couple involved. There was some discussion as to whether the
Family Court would take the child’s wishes into account, and it was considered
that they wouldn’t if the child were very young. The significant point here is that
there is no legal way of ensuring that the wishes of the couple are carried out.

“A lot of this stuff operates on good will…but we don’t have any protection if
things go wrong.”

The transgender people’s focus group
The transgender focus group touched only briefly on this issue. It was generally
agreed that the provisions should be amended to allow for adoption regardless of
gender or sexual orientation.




                                          18
The intersex people’s interviews
The intersex interviewees indicated that this was a significant issue for many
intersex people. They felt that the Adoption Act made it difficult for those intersex
people who were unable to reproduce due to their medical condition and were in
a same sex relationship to adopt. They believed that the Adoption Act should be
amended to provide for adoption for same sex couples.

One intersex person indicated that it was difficult for heterosexual intersex
couples to adopt as well. She felt that there was a bias in agencies towards
families with existing children. She felt that this was discriminatory and sought
some legislative reassurance that this practice would not be allowed to continue.


3.3.1 Artificial Conception Act 1985

Issue: Should the Artificial Conception Act 1985 be amended to recognise the non-birth mother in
a lesbian relationship as a parent of a child born through assisted reproductive technology?


The gay, lesbian and bisexual focus group
Gay, lesbian and bisexual focus group participants felt that the Artificial
Conception Act should be amended to recognise the non-birth mother in a
lesbian relationship where the child is born through assisted reproductive
technology. Many of the reasons put forward in favour of legislative reform of the
Artificial Conception Act were the same as those outlined above in the discussion
on adoption rights.

Participants believed that the parenting rights and responsibilities of the non-birth
mother should be reflected in the law. This was considered important for several
reasons: in terms of recognition of the parents and child as a family unit; in terms
of providing protection against discrimination in specific instances; and also in
enabling the non-biological mother to exercise her rights as a parent.


3.3.2 Surrogacy arrangements

Issue: Should the Artificial Conception Act 1985 be amended to allow same sex couples to apply
for a parentage order where a child is born pursuant to a substitute parent agreement?


The gay, lesbian and bisexual focus group
This issue was not considered in any detail as none of the participants had any
experience of the situation. However, the group believed that the rights of a same
sex couple in this regard should be no different from the rights that currently exist
for opposite sex couples.


                                              19
3.3.3 Transgender people and parenting


The transgender people’s focus group
Participants pointed out that only those who meet the rigorous criteria for a
change of birth certificate are catered for under the Artificial Conception Act
1985. However, the focus group felt that those transgender people who do not
wish to undergo invasive reassignment surgery or who do not wish to divorce
their marriage partner are strongly discriminated against by the provisions of the
Act. The focus group participants felt that there was no legislative need to
designate either parent as ‘mother’ or ‘father’ but rather to simply recognise a
‘parent’. They felt that the Act should thus be amended to allow for transgender
people to be recognised as a non-birth parent where applicable and to be able to
apply for a parentage order where that is applicable.

The issue of the criteria used in the current legislation to determine whether a
transgender person is entitled to a new birth certificate is discussed below under
that section of the issues paper. The focus group felt that the criteria for a new
birth certificate are discriminatory.



3.4 Registering relationships

Issues: Is there a benefit in the ACT providing a mechanism to register same sex relationships in the
ACT? Should this also apply to opposite sex relationships? What consequences should flow from
this under ACT law?


The gay, lesbian and bisexual focus group
The majority of gay, lesbian and bisexual participants thought that it would be
beneficial to be able to register same sex relationships in the ACT. It was felt that
providing a mechanism to register same sex relationships would assist in the
recognition of same sex relationships in the broader community. By enabling gay,
lesbian and bisexual people to register relationships it was argued, the ACT
government would be sending a message to society that same sex relationships
are valid.

Whilst a few participants were of the view that the benefits would not be
significant, they were not against the idea and thought that the option should be
available for anyone who wanted to register their relationship.

“The ability to register a relationship would be important symbolically, even if it
didn’t mean significant change in our daily lives.”



                                                20
There was some discussion around just how much effect registering a
relationship would have on being treated equally under the law and in providing
protection against discrimination. Some expressed a view that in the event of a
relationship break down, or the death of a partner, the fact that the relationship
had been registered might assist in issues around property settlement and
entitlements.

Some were of the view that registering relationships would not necessarily
provide protection against discrimination on some significant issues, such as
parental rights and responsibilities. One participant expressed concern over what
would happen to her children if she were to die. Her fear was that the law would
recognise the biological father (her former partner) as the rightful parent, and that
her current partner would have no rights even though she was considered to be
the parent of the children. This participant felt that having the relationship
registered would not necessarily protect against such a situation. Others felt that
it may indeed carry some weight in the Family Court, and that registration would
at least be better than nothing.

One or two participants expressed concern that registering of relationships could
enable the Commonwealth government to recognise relationships in negative
ways, for example for social security purposes. However, most were of the view
that the benefits of recognition would far outweigh any negative consequences.

“With rights come certain obligations. You just have to accept that.”

There was a clear view among gay, lesbian and bisexual participants that
registration of relationships should be optional, and that the ACT government
should provide a mechanism for registering relationships for those who wished to
do so.

Participants were of the view that heterosexual people should also be entitled to
register their relationships where they wished to do so.

The transgender people’s focus group
As there were other, more significant issues which specifically related to
transgender people this issue was not canvassed to any extent during the
transgender people’s focus group.

The intersex people’s interviews
This issue was not particularly significant for the intersex people interviewed,
since both were in heterosexual relationships. They did however believe that
those in same sex relationships should be entitled to a mechanism for registering
their relationship under the law.




                                         21
3.5 Anti-vilification legislation

Issue: Should the vilification provisions of the Discrimination Act 1991 be extended to prohibit acts
of vilification against gay, lesbian, transgender and intersex people, or people with HIV/AIDS?


The gay, lesbian and bisexual focus group
Participants in the gay, lesbian and bisexual focus group were of the view that
the vilification provisions of the Discrimination Act should also prohibit vilification
against gay, lesbian and bisexual people. Many were in favour of the legislation
making specific reference to sexuality related vilification. Others felt that it should
be unlawful to vilify any person on any grounds, and that the legislation could
deal with vilification in a more general way.

The majority of gay, lesbian and bisexual participants were of the view that
making it explicit in the legislation that it is unlawful to vilify or discriminate on the
basis of sexuality was important in sending a message to society.

“Having such legislation might stop some of the homophobic letters to the
Canberra Times – at least make it more difficult for someone to get away with
writing anti-gay stuff.”

There was some discussion over whether the legislation could actually change
the attitudes of the wider society. One person pointed out that even if law reform
doesn’t change attitudes in the short term, it can change people’s behaviour.
Attitudinal change might be a longer term outcome and legislative reform could
play an important role in initiating a process of change.

One participant pointed out that legislative change would raise people’s
awareness, including people who hold positions of influence in society. By way of
example she expressed a view that most teachers would be aware of and deal
appropriately with any racial slurs and taunts that happened in the classroom.
She expressed a view that the term ‘gay’ was often used in a derogatory sense
amongst school kids, but felt that this might not be seen in quite the same light as
racial insults. Participants generally felt that including sexuality related vilification
in the Discrimination Act makes more explicit the boundaries between acceptable
and unacceptable behaviour.

The transgender people’s focus group
Participants in the transgender focus group indicated that they had directly
experienced the effects of vilification. As described above in Section 3.2 -
Discrimination and transgender and intersex people, there was some discussion
regarding the need to specifically name each group that the general ACT
population were not allowed to vilify. The point was made that it was difficult to
understand whether there were any groups in society where it would be


                                                22
acceptable to vilify. However, in accepting that the function of the Act was to
specifically name those groups that were particularly vulnerable to vilification,
they were in strong agreement that transgender people should be specifically
included in the Act.

They pointed out that the current proposal to change the laws in the ACT was
resulting in considerable vilification in the newspaper through the letters to the
editor and that this should not be acceptable.

Participants pointed out that partners of transgender people were also subject to
vilification and should be included in the legislation. Several instances of
vilification of the partner of a transgender person were cited during the
discussion.

The intersex people’s interviews
The intersex people interviewed believed that because their condition was not
obvious instances of vilification would be extremely unlikely. They did however
support the notion of ensuring adequate protection within the law for those with
intersex condition as well as gay, lesbian, bisexual and transgender people.



3.6 Defence of provocation – the ‘gay panic’ defence

Issues: Should the defence of provocation be abolished in the circumstances of a non-violent
homosexual advance? Should the defence of provocation be abolished generally?


The gay, lesbian and bisexual focus group
All participants were strongly of the view that the gay panic defence should in no
way be used as a defence for murder. Participants agreed that the existence of
the gay panic defence sent a message to society that it was okay to think of gay
and lesbian people as freaks. It was considered a gross insult to gay, lesbian and
bisexual people that the law could accept the fact that someone could be
provoked to murder on the basis of a presumed sexual advance.

“If that’s reasonable, then would it also be reasonable for a lesbian to murder a
heterosexual man who tried to chat her up because she was so disgusted by his
sexuality?”

On the issue of the provocation defence more generally some quite differing
views were expressed. Some argued for the abolition of the provocation defence.
However, there was a strong view, amongst the lesbian participants in particular,
that getting rid of the provocation defence would be very detrimental to women
who were victims of domestic violence. They saw the ability through the


                                            23
provocation defence to reduce a charge from murder to manslaughter as a
crucial rationale for maintaining a provocation defence in circumstances of
ongoing domestic violence.

Some participants argued that the problem was not so much in the wording of the
legislation, but in the court’s interpretation of the law. If provocation were
removed as a defence, then that would leave certain people vulnerable, such as
victims of domestic violence. However, the existence of the provocation defence
allowed for discriminatory judgements from the courts.

All participants agreed that the ‘gay panic’ defence should be struck from the law,
and that under no circumstances should it be used as defence for murder,
although as discussed above, views differed as to the best way to achieve this.

The transgender people’s focus group
The transgender focus group participants saw themselves as likely targets of the
‘gay panic’ defence and believed that it should be abolished.

The intersex people’s interviews
The intersex people consulted felt that this issue had little direct relevance to
them. However, they were of the view that the defence of provocation should be
abolished in the case of a non-violent homosexual advance.



3.7 Meeting the needs of transgender people

3.7.1 Births, Deaths and Marriages Registration Act 1997

Issues: Are the provisions in part 4 of the Births, Deaths and Marriages Act 1997 appropriate?


The transgender people’s focus group
There was strong agreement amongst participants that the current provisions of
this Act are discriminatory and inadequate. The group noted that the provisions
apply solely to those persons who were born in the ACT and hence would apply
to only a relatively small percentage of the current ACT population.

The group believed that the provisions of the Act were discriminatory in both the
need for the person not to be married and for it to be restricted to those who had
undergone sexual reassignment surgery. They said that the current provisions
make transgender people run a never-ending gauntlet of difficulties and
humiliating situations.



                                                24
Several of the focus group participants indicated that they had been or were
currently married. They said that although they could see the logic of the situation
in regard to Federal law, the current provisions did not recognise that a person
may not wish to divorce their marriage partner, but may still wish to live ‘full-time’
as the gender that they have long believed themselves to rightly be, that is, not
the gender on their birth certificate. They felt they had a right to be recognised in
the gender identity they preferred and that a change to the law could facilitate the
recognition of that right.

There was strong agreement that the requirement for sexual reassignment
surgery was inhumane. The group suggested that sexual reassignment surgery
is expensive, and hence many people cannot afford the process; and that it is
highly invasive surgery, such that many transgender people do not wish to put
their bodies and lives at risk in this manner.

“The way the law is at the moment it’s very discriminatory against people who
choose not to or are unable to have surgery. The surgery is very invasive and not
everyone wants it.”

The group also felt that sexual reassignment surgery was a relatively crude
indicator of gender identity. A participant pointed out that since the current law
required a person to remove one’s reproductive organs in order to become the
‘opposite’ gender then any woman who had a full hysterectomy could also meet
the criteria and be called a man.

One participant suggested that it may be time that society and the law did away
with the idea that the birth certificate be the main form of identification and
especially of gender identification. Other participants agreed with this point of
view and related stories of how they had felt humiliated when having to present a
birth certificate to open a bank account or obtain a credit card because they
wished their bank account to be in their transgender identity but the birth
certificate stipulated their birth gender instead of their lived identity.

All participants were very clear that they believed the law should make it as easy
to change your sex as it is to change your name.




                                         25
3.7.2 Discrimination Act 1991

Issue: Does the Discrimination Act 1991 provide adequate protection from discrimination for
transgender people?

This issue is covered twice in the issues paper. It has been addressed for both
transgender and intersex people above, where it first appears under the heading
Discrimination and transgender and intersex people.


3.7.3 Other legislative provisions

Issues: What is the appropriate approach to meeting the needs of transgender people in respect of
sex segregated public facilities such as public baths? How should this approach also take into
account the needs of other users of such facilities?


The transgender people’s focus group
The discussion centred around two situations; the issue of personal searches
and the Public Baths and Public Bathing Act 1956.

Participants accepted that there might be some instances where there could be a
valid reason for needing to define gender under the law. They did not believe that
the situation of the need for personal searches to be made by a person of the
same sex, however, was such an instance. They suggested that in all cases
respect for the comfort and dignity of the person being searched should be of
paramount importance. This suggested, they said, the person should be able to
stipulate the preferred gender of the person by whom they would be searched.
They indicated that most transgender people would be happy to indicate their
status to the search agency provided they could be sure that their personal
dignity was maintained. They also believed that any resultant cases of frivolous
requests (eg. a man asking to be searched by a woman for sexual titillation
purposes) could be easily dealt with by the agency.

A participant described the reactions of her workmates to her changing to living
full-time in her preferred gender. The issue of which toilets to use was contested
by only a few of her workmates. She pointed out that had she been forced to use
the male facilities she would have expected a very uncomfortable reception with
possible violence. Another participant revealed that when she was ‘transitioning’
she felt forced to use female facilities on another floor of her workplace where
she was not known. Several participants agreed that the people who had the
most difficulty in accepting the transgender person who is living full-time in their
preferred identity were those who had known the transgender person prior to



                                              26
their living their changed identity. They suggested that an education program
would help immensely with transitioning issues.

All of the focus group members indicated a distinct reluctance to enter public
bathing area change rooms because the rooms were not well set up for personal
privacy when changing. Ensuring separate change cubicles were provided in all
public bathing facilities appeared to be one simple method of ensuring the
privacy of the transgender individual and the general public.

Issues: The government welcomes submissions on how current legislative schemes are addressing
the needs of transgender people. Are there needs that are not covered by this issues paper that
should be addressed?


The transgender people’s focus group
Participants pointed out that they were often considered the third tier behind gay
and lesbian people when it came to public funding. They indicated that it was not
possible to obtain public funding for a transgender counselling service, nor a
transgender outreach service. They said that there was little evidence of any
education or awareness programs around their issues, for health professionals,
police or the general public.

Several participants pointed specifically to health services for transgender
people, stating that they had been refused medical attention on occasion; had
been humiliated when attending for breast screening services; had been refused
funding for alternative methods of breast screening when the more usual service
had proved ineffective; and were refused subsidised medication for issues such
as hirsutism. Some participants said that to receive particular drugs to assist their
transition to their preferred gender identity they had to be placed on a register of
‘sexual deviants’, which they found particularly humiliating. They felt that the
government was simply ignoring all of these issues.



3.8 Intersex people and ‘normalising’ surgery

Issue: Is it necessary to regulate normalising surgery carried out on intersex children?

The intersex people interviewed were strongly of the opinion that legislation
should be put in place to regulate ‘normalising’ surgery and that it should not be
carried out except for genuine medical purposes, that is, where a life is at risk or
the person is suffering pain. They queried the use of the term ‘normalising’
saying that it was not genuine therapeutic surgery, but came very close in their
eyes to genital mutilation. They were of the view that surgery was often carried



                                                 27
out simply to fix the parents’ embarrassment rather than for any genuine
therapeutic purpose for the child. One person pointed out that if the baby is
healthy then there is no need for surgery without the affected individual’s
consent.

The interviewees suggested that when an intersex child is born there is a
considerable amount of pressure placed on parents by the medical profession.
They indicated that although much of this may be well intentioned they believe it
to be severely misplaced. Several anecdotes were recounted of parents being
unduly pressured by the medical profession.

The interviewees suggested that a cooling off period for parents and the medical
profession alike should be legislatively put into place. They believed that the
legislation should also include the requirement that parents of a new-born
intersex child should receive counselling, talk to intersex support groups and
hear the stories of intersex adults who have and have not been the subject of
‘normalising’ surgery.

They also pointed out that intersex births are sufficiently frequent that the medical
profession should receive education and awareness training, preferably from
intersex support groups or the like.

Issues: Is the exception in section 77 of the Crimes Act 1900 appropriate? Should the exceptions
be limited to the “genuine therapeutic purposes” contemplated in section 76?

Interviewees were strongly of the view that ‘normalising’ surgery that is
undertaken without the consent of the individual concerned should not be
condoned by the Crimes Act 1900.

The preference from one interviewee was for the Act to direct that an application
must be made to the Family Court if the parents wish to have ‘normalising’
surgery undertaken on their child before the child is old enough to have a say.



3.9 Policy, programs and priorities

Issues: Does the ACT Government need to take better account of the specific needs of lesbian, gay,
bisexual, transgender or intersex people in the ACT? Are there particular priority areas?


The transgender people’s focus group
Issues under this heading have largely been taken up under the heading of
Needs not covered in the issues paper above.



                                               28
The particular health and medical needs of transgender people would appear to
be one of the key priority areas for participants in the transgender focus group.

The intersex people’s interviews
Education and awareness raising of the intersex condition was a key concern for
those interviewed. They felt that the condition was not well understood by
society, and that even the medical profession lacked an awareness of the issues.
They pointed out that very few prospective parents would be made aware by
their doctors of the prevalence of intersex births.

The interviewees felt that programs and policies that could improve the
understanding of intersex conditions amongst health professionals and society in
general would be welcome. They suggested that this should be done in close
consultation with key stakeholders, such as intersex support agencies.




                                       29

				
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