TAS Passes Controversial Bill To Update Marriage Laws and Make Gender Optional On Birth Certificates

Tuesday 16 April 2019 @ 2.01 p.m. | Legal Research

The Justice and Related Legislation (Marriage and Gender Amendments) Bill 2018 (TAS) (formerly known as the Justice and Related Legislation (Marriage Amendments) Bill 2018 (TAS)) (‘the Bill’) was first introduced to the Tasmanian Legislative Assembly on 16 October 2018. The Bill passed both houses with amendments on 10 April 2019 and is awaiting assent.

The Bill

The Bill amends the Births, Deaths and Marriages Registration Act 1999 (TAS) sections 28A and 28C in regards to registration for a sex change. Currently, under section 28A:

“(1)  An adult person –

(a) whose birth is entered in the Register; and

(b) who has undergone sexual reassignment surgery; and

(c) who is not married –

may apply to the Registrar, in a form approved by the Registrar, to register a change of the person's sex.”

Under the Bill, individuals will no longer need to be unmarried in order to apply. Furthermore, the amendments remove the requirement of transgender individuals to have sexual reassignment surgery in order to have a new gender recognised. Under the new laws, individuals aged over 16 years of age can apply to change their registered gender without parental approval and further requirements.

The Bill also makes further amendments to the Births, Deaths and Marriages Registration Act 1999 (TAS), making it optional for parents to record the sex of their child on their birth certificate.

Under section 29 of the Adoption Act 1988 (TAS), the current terminology of this section relating to the parents of the child only acknowledges marriage between a man and a woman and does not include same-sex marriage between two women. The Bill amends the provisions in order to update the definition of marriage.

Tasmania’s anti-discrimination laws are also amended by the Bill. The new amendments to the Anti-Discrimination Act 1988 (TAS) allow a religious minister or a religious celebrant to refuse to solemnise a marriage if they have objections to the marriage on the basis of religious beliefs as mentioned in sections 47 and 47A of the Marriage Act 1961 (CTH). The Attorney-General in her media release notes that:

“This provision goes no further than those of the Commonwealth law and ensures consistency between our two jurisdictions. We don’t want those who are exempt under the Commonwealth Act to potentially be subject to a complaint under our own, state-based legislation.”

However, the Bill also adds provisions to the Anti-Discrimination Act 1988 (TAS), which extends the definition of hate speech to cover gender expression. This will include the required correct use of changed honorifics and names after an individual’s sex change.

Public Response

The final Bill was passed with a number of amendments to its original content. The Tasmanian Government maintained their opposition to the reforms introduced through amendments by both Labor and the Greens in both houses. The Attorney-General stated in a November 2018 media release:

“The Tasmanian Government strongly opposed the amendments, which by Labor and the Greens’ own admission fell outside the scope of the Bill. Make no mistake, this amended Bill contains legally untested, unconsulted and highly problematic changes that we could not support.”

Premier Will Hodgman also added:

“It is highly likely the parliament will need to fix up problems with the legislation and repeal the Labor-Green amendments at a later date.”

The Australian Christian Lobby is already backing a repeal of the reforms, arguing that the removal of gender on birth certificates is ignoring biological truths. State Director of the lobby group, Mark Brown, has warned that the changes would have unintended consequences such as jeopardising women only safe-spaces and potentially leading to competitive inequalities in sport.

On the other hand, Liberal Speaker Sue Hickey, who crossed the floor in support of the amendments state:

“This is not a win for any political party, rather it grants dignity to the transgender community.”

Transgender activist Martine Delaney also noted:

“This is a historic day for transgender and gender diverse people, not only in Tasmania but around the world, this legislation ranks among the most inclusive and equitable in the world.”

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