No action on trans and intersex rights from WA Government

Western Australia’s Attorney General John Quigley has confirmed the McGowan Government has not ‘fully considered’ a report on trans and intersex rights which was tabled in 2018.

Project 108: Final Report: Review of Western Australian legislation in relation to the registration or change of a person sex and/or gender status relating to sex characteristics was the result of an investigation by the Law Reform of Western Australia.

The review’s Terms of Reference sought an inquiry into the need for a new category for classification of sex, the role of the Gender Reassignment Board, the criteria used to determine whether intersex status should be registered and approval requirements in relation to applications by children to register change of sex or intersex status.

Presented to the government five years ago, the report made 17 recommendations for changes to state legislation. These included amendments to the Equal Opportunity Act (WA) to protect against discrimination based on gender identity or intersex status, the removal of sex classifications from birth certificates, the repeal of the Gender Reassignment Act 2000 (WA) – which established the Gender Reassignment Board – and for the Births, Deaths and Marriages Registration Act 1998 (WA) to be amended to provide a non-binary classification.

On Tuesday, which marked International Day Against Homophobia, Biphobia, Intersexism and Transphobia, Greens sole WA MLC Brad Pettitt asked the AG if the government has “now fully considered the report”, and if yes, “are there any other recommendations that the government will not be accepting in addition to recommendations 5 and 6 mentioned at the time of tabling; and 2. has any progress been made toward implementing any of the recommendations; and, if so, which ones?”

Recommendation 5 reads “Sex classification be removed from birth certificates,” while Recommendation 6 called for “The Births, Deaths and Marriages Registration Act 1998 (WA) and the Births, Deaths and Marriage Registration Regulations 1999 (WA) be amended to expressly prohibit the recording of sex or gender on birth certificates.”

Pettitt’s final question asked if the government had not considered the report, “when does the minister expect the report will be considered?”

The Attorney General’s reply was brief: “1. No. 2. Not applicable. 3. Consideration is ongoing.”

In 2021, ahead of WA’s last state election, LGBTQIA+ advocacy group Just.Equal Australia wrote to all parties with questions on LGBTQIA+ issues and rights. Premier Mark McGowan responded on behalf of WA Labor.

“At the time of the tabling of the report, the WA Government provided an interim response confirming that it would not be supporting Recommendations 5 and 6, which were to remove and expressly prohibit the recording of sex or gender on birth certificates,” McGowan wrote last year.

“The Project 108 Final Report is a significant and forward-looking body of work containing recommendations and implications of importance to the community. As such, it requires careful consideration. To date, the Department of Justice and the State Solicitor’s Office have put considerable effort into considering the recommendations.”

Premier McGowan also cited Covid-19 as a reason the government has “not been in a position to fully respond to the report,” while assuring LGBTQIA+ voters that a “re-elected McGowan Government remains committed to LGBTIQ+ law reform commenced in Government, including consideration of the LRCWA’s Project 108: Final Report: Review of Western Australian legislation in relation to the recognition of a person’s sex, change of sex or intersex status.”

In 2017, prior to the commencement of the LRCWA’s investigation, WA Labor had already voted in favour of a motion to abolish WA’s Gender Reassignment Board and allow trans folks to affirm their gender without the need for hormones or surgery, as well as a motion supporting a third gender category for official documents.

Speaking to OUTinPerth, TransFolk of WA Chair Hunter Gurevich said the organisation was grateful that Brad Pettitt was inquiring after the issue.

“We are disappointed that after all these years of this project being reviewed we still haven’t got an answer,” Gurevich said.

“It shouldn’t take this long. It’s very frustrating.”

On Project 108, Brad Pettitt says The Greens believe freedom of gender and sexual identities are a fundamental human right.

“Currently in WA, there are a myriad of quite unnecessary hurdles that trans, intersex and gender diverse people face in order to be recognised as who they are,” Pettitt told OUTinPerth.

“Greens WA Gender Identity policy aligns with the recommendations set out in Project 108, and my Greens predecessors in state Parliament before me campaigned on the lack of government response to Project 108.”

Pettitt says it is clear that acting on the recommendations in the Project 108 Final Report is not a priority for the current government.

“The report was tabled in Parliament in December 2018, and the Labor government have had three and a half years to consider this report, and they have failed to do so or provide a timeline of when consideration will be complete. The delay isn’t good enough and is disrespectful to the LGBTQIA+ community.”

“It is disappointing that many Labor MPs in parliament were happy to celebrate IDAHOBIT on their social media yesterday but their party can’t prioritise this important and necessary reform.”

“The Greens WA will continue to advocate for the LGBTQIA+ community as it always has done. I will continue to question the government on what action they have taken on Project 108 and my office have already had concerned members of the community and stakeholders get in touch, outraged with the government’s inaction.”

Leigh Andrew Hill

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