South Australian laws covering everything from birth certificates to personal relationships and IVF are being put under the microscope in an audit of potential discrimination based on sexual orientation, gender and intersex status.
Adelaide University’s SA Law Reform Institute is conducting the audit at the request of the State Government and aims to have a set of recommendations ready in September.
The institute has this week called for submissions from members of the community, with director Professor John Williams saying it is particularly keen to hear from anyone who has experienced this type of discrimination or faced legal barriers.
“Despite a greater diversity and vibrancy in our South Australian community, discrimination on the grounds of sexual orientation, intersex status and gender is unfortunately still experienced by many people,” said Williams, who is also dean of the Adelaide Law School.
“There is now a growing awareness of the need to better understand how to prevent such discrimination – and that includes the ways in which our laws and regulations impact on individuals and their families.”
A fact sheet produced by the institute says South Australian laws presume heterosexuality is the norm, with words such as “marriage”, “husband” and “wife” commonly used in legislation.
Gender diversity is generally not recognised; the terms “intersex”, “transgender” and “transsexual” are absent from SA’s Equal Opportunity Act, the Births, Deaths and Marriages Act, and the Family Relationships Act.
Williams told InDaily the audit was looking at around 65 pieces of South Australian legislation that had “a very narrow view” of gender – for example, by referring specifically to men and/or women.
“We are looking carefully at these laws to see whether they need to be changed to include people who identify as a man or a woman, regardless of their sex characteristics.”
He said some pieces of legislation had a profound effect on people’s lives. For example, there is currently no legal option for people to be registered on birth certificates as intersex (born with an anatomy that doesn’t fit typical definitions of male/female), while transgender people must undergo a sexual reassignment procedure and apply to the Magistrates’ Court to change their registered gender.
“We’ve heard from people for whom clearly this is a very important thing,” Williams said.
“It’s a question for them of human rights; it’s also about dignity.”
The Law Reform Institute’s initial consultations with members of the lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ) community have also uncovered concerns related to personal relationships and starting a family.
Current legislation prevents same-sex couples adopting children through wording that says adopting parents must be in a “marriage relationship” (defined as a husband and wife or de facto husband and wife), although this is currently under review.
Access to IVF services appears to discriminate against same-sex couples through a provision that it is available only when there is a fertility problem.
“One of the confronting questions that has been put to us is, ‘How do I start a family and live as a family here in South Australia?” Williams said.
“There really is legislation from cradle to grave that does have an impact on people in these communities.”
Williams said the institute would welcome views on the so-called “gay panic” defence, which has been the subject of debate following a recent successful appeal in the High Court. However, he said he expected that the law, which offers a partial defence of provocation to defendants who lose self-control and kill someone, may be the subject of parliamentary discussion before the audit was complete.
The audit is also taking place against the background of a growing national push for marriage equality.
While current federal laws limit the state’s ability to legislate on marriage, the Law Reform Institute is canvassing opinions on issues such as whether South Australia should consider recognising civil unions and whether it should register same-sex marriages solemnised overseas.
In many ways, Williams said, the audit was simply looking at how the law could catch up with the way people were already living their lives.
“The institute intends to look closely at how other Australian states and territories have addressed these issues, as well as considering the existing reviews underway here in South Australia in relation to adoption and sexual reassignment procedures,” he said.
The deadline for submissions on the audit is July 6, with feedback forms available here.
