Ms JO HAYLEN (Summer Hill—Minister for Transport): I acknowledge that the Equality Legislation Amendment Bill (LGBTIQA+) Bill 2023 evokes strong views in the community and thank all the Summer Hill constituents who have written to me to express their views, either in support of or in opposition to the bill. Despite the breadth of views from across the community, it is important to understand that this bill does two things: It makes very important, transformative changes for the few people it directly impacts; and it sends a strong message that everyone in our community, including our LGBTIQA+ communities, are valued, respected and cared for. I am very proud to support the bill.
The equality bill makes substantive changes that address discrimination faced by LGBTIQA+ people in New South Wales. It amends the Births, Deaths and Marriages Registration Act to allow for a person to change their sex on a birth certificate without needing to have irreversible surgery. It amends the Surrogacy Act 2010 to ensure that parentage orders can be made in certain circumstances for parents who have accessed international commercial surrogacy in order to form their families. It establishes a new coercive control offence for a person who outs or threatens to out another person. It removes outdated offences related to circumstances where a person knowingly lived wholly or partly on the proceeds of sex work.
The bill amends the Crimes (Sentencing Procedure) Act 1999 to clarify that the existing aggravating factor applies when an offence is motivated by hatred against a group of people of a particular gender identity or with variations of sex characteristics. In short, crimes motivated by hatred of trans and intersex people will now be treated the same as other hate crimes. The bill addresses language that is stigmatising for people living with HIV and AIDS, updating both the Drug Misuse and Trafficking Act 1985 and the Workers Compensation Act 1987. Importantly, the bill amends the Mental Health Act 2007 to provide that a person is not mentally ill or mentally disordered merely because the person expresses or refuses to express a particular gender identity or gender expression.
Following amendments foreshadowed by the member for Sydney, there are several reforms contained within the first print of the bill that will be considered at a later time. Whether or not LGBTIQA+ students and teachers are protected from being expelled or fired from religious and private schools will be considered as part of the Government's landmark review of the Anti-Discrimination Act, which is currently underway. Following advice, provisions in the bill that clarify consent requirements for young people seeking to access gender‑affirming care have been withdrawn from consideration. Good progress has been made by the Minister for Health and NSW Health to support those young people and their families. As Equality Australia has noted, "The Australian Medical Association and community advocates believe these changes are unnecessary and unhelpful. Removing this provision will have no impact on young people and their families accessing gender-affirming care." Finally, consideration of provisions around street-based sex work offences can occur under the statutory review of the Summary Offences Act.
While the bill has evolved, today members have before them a real opportunity to make pragmatic, progressive and concrete change for LGBTIQA+ communities. It is an opportunity we must not miss. New South Wales is the last State that still requires transgender and gender diverse people to undergo invasive, irreversible surgical interventions before being able to change the record of their sex on their birth certificate. Frankly, this arrangement is outdated, nonsensical and cruel. I have met with several trans and gender‑diverse people from my electorate who have detailed the impact of this practice. A young trans person who is looking to find a job has been hampered in their efforts because their birth certificate does not align with their gender identity. An older trans woman experienced bureaucratic delays in accessing housing support because of the discrepancies between their State-issued documentation and their gender identity.
A justice of the peace [JP] attended a local medical centre for half a day to ensure they could witness the signatures of two separate doctors confirming that a constituent had undergone gender‑affirming surgery, a statement they could only make after undertaking an invasive medical examination. This was not only humiliating for the trans person undergoing the examinations, as well as the doctors and the JP, but was also utterly unnecessary. Equality Australia notes that a 2021 survey of 153 trans and gender‑diverse people born in New South Wales found only 14.9 per cent of people had been able to update their gender under existing laws. It is well past time that we make this change, get this right and get it done.
The bill also creates a pathway to obtain parentage orders for children born and families formed through international commercial surrogacy provisions. Under current law, commercial surrogacy is illegal. Consequently, surrogacy parentage orders cannot be made in circumstances where a child is born through a commercial surrogacy arrangement. It means that children in New South Wales who are raised in loving families—both same‑sex parented and opposite‑sex parented families, mind you—are not recognised legally as the children of their parents under a range of laws, including superannuation and inheritance laws. That causes undue concern and distress to families and fails to recognise the many ways families are formed. One Marrickville resident wrote to me to share their story. After exploring options for local fostering and adoption, as well as domestic altruistic surrogacy arrangements, he and his partner chose to form their family through overseas surrogacy. Years later the family still lives in legal limbo and fear. He states:
In NSW families through surrogacy can apply for a parentage order to transfer legal parentage from the surrogate and her partner to the intended parents.
However, my husband and I have not done this as we are still fearful of being charged with engaging in commercial surrogacy if we go before the court and admit to having our children through commercial surrogacy.
This leaves my family and thousands of others in legal limbo.
My husband is not recorded on any legal document as my daughter's parent. Her birth certificate has me and her surrogate listed. Her citizenship application only has me as her parent. Because of this, when I apply for a passport for my daughter I do this as a single parent.
I have sleepless nights worrying about what could happen if I were to die—how would my husband navigate the legal documentation often required of parents when there is no record of him?
When I was recently filling out the NDIS application for my daughter there was a question asking if I am the legal parent of the child I am applying for NDIS for.
I had to question again if it is not me—who is her parent? Not the wonderful, generous person who gave birth to her 12 years ago.
A person who she has no connection to.
A person who has not changed her nappy, wiped her nose, picked her up from school when she is sick, or kissed her goodnight.
This is just one example of the impact and legal limbo families like mine are facing.
All children should be equal before the law regardless of the circumstances of their conception.
This family is not alone. There are so many stories like this one in my electorate and across the State. Those families need this bill. The bill as it stands delivers a pathway for families in those circumstances to have the certainty of parentage orders. While I appreciate some in the community will want a clearer outcome that addresses the illegality of commercial surrogacy itself, I note that a review of the Surrogacy Act is currently underway and there will be opportunities to assess whether the current laws are fit for purpose. Many other members have done so during this debate, but I put on record that the member for Sydney is an honest, principled and incredibly hardworking member of this place. He has worked tirelessly and persistently to improve the lives of LGBTQIA+ people in New South Wales. I appreciate that it has been a long road to get this bill to this point, and I pay tribute to him and all the incredible people in his office.
Today is also a day to thank the many advocates from key community groups, including Equality Australia, Rainbow Families, members of the union movement, ACON and others. I also acknowledge the leadership of the Hon. Penny Sharpe and advocates from our party. Rainbow Labor has played a powerful role in advocating for LGBTQIA+ members of the Labor Party and their allies. Because the leaders of Rainbow Labor have strong, longstanding ties to other community organisations, they have been able to navigate the complexities of this bill and work closely with members across the Parliament. Today is a truly historic day that delivers real, pragmatic and progressive change for the LGBTQIA+ community in New South Wales. Today is the result of persistence and patient advocacy. It is a big step in the right direction. I commend the bill to the House.