Following public concern, the NSW Legislative Assembly recently referred the flawed Equality Legislation Amendment (LGBTIQA+) Bill 2023 to its Committee on Community Services to conduct an inquiry to examine “operational issues.” The Committee is due to report by 3 June 2024. If passed, the bill will amend 20 different laws all at once in New South Wales and will, remove bans on commercial surrogacy for NSW citizens, allow anyone to change their legal sex, decriminalise pimping, and allow children under 16 to consent to unproven medical interventions – such as the use of puberty blockers for the treatment of gender dysphoria – without parental consent.
We are deeply concerned by the Committee’s decision not to allow meaningful public participation in the inquiry, despite the committee’s acknowledging the large amount of public interest in the bill. Although an inquiry was held, only selected ‘stakeholders’ were invited to make submissions, and a majority of those stakeholders represented only one side of the debate on matters that affect women and girls. All others had to make their concerns known through an online survey, which provided only for likert-scale-type responses and did not allow for prose-based answers.
Lack of democratic process
Although we could have sought to be included in the consultations for the bill (and still have been rejected), AAWAA took a principled stance to not take part, or seek to take part, in an undemocratic process. And although we could have registered concerns at the local level with our state representatives, in our experience such approaches have led to little success and often instead to distress as our elected members treat us dismissively – at the least. Moreover, members of our groups are concerned for their privacy and for consequences women face when speaking up about matters that relate to us, especially as regards sex and gender.
We are interested to know why the Committee did not allow meaningful and open public input into the inquiry and uphold our human right to “seek, receive and impart information and ideas of all kinds” (art 19 International Covenant on Civil and Political Rights). The situation also breaches women’s rights to participate in public affairs (art 25 ICCPR, art 7 Convention on the Elimination of All Forms of Discrimination against Women). We have made our concerns known at the UN level.
The Committee process is also at odds with best practice internationally as well as that of other jurisdictions in Australia. In 2022 the Queensland Parliament introduced a bill to allow sex-self ID. Following public concern, Parliament referred the bill to a committee. The committee invited the public to make written submissions, receiving 385 which it published online. It also held public hearings.
Even so, the development of the Queensland bill fell short of best practice. The Queensland Law Society commented that “It is in all our best interests to ensure proposed laws work as effectively and efficiently as possible, and this requires meaningful and robust consultations with stakeholders. Short consultations held during the Christmas and new year shutdown will not yield the best legislation”. A dissenting committee member also noted the Government had begun closed consultations with LGBT groups in 2018 but engaged women’s groups only in 2022 and then only in response to public pressure with one information session rather than actual consultation: “The development of this Bill could have benefited immeasurably by being conducted in a transparent, respectful and consultative manner with the whole community over an extended period of time.”
We are deeply concerned by the NSW Parliament’s recent track record on public consultation on important legislative processes. We (and others) were expecting the Parliament to refer a controversial conversion practices ban Bill to a committee for public comment. Indeed, the Selection of Bills Committee approved referral of the bill to committee for a two-month public inquiry. But the Government and NSW Greens immediately voted in the Legislative Assembly to overturn the referral decision (by 21 votes to 20). Party discipline meant that even MPs who had told us privately that they opposed the bill voted not to allow a public discussion.
The impact of the bill itself
If passed, the bill will remove essential safeguards for women and girls and will fail to protect us where we are vulnerable because of our sex. This includes but is not limited to:
Prostitution. This bill will decriminalise the prostitution of women and girls in NSW by removing existing offences relating to living on the earnings of prostitution (‘pimping’), coercing women into prostitution, and advertising for women to be prostituted. It will thus make it easier to traffic and further exploit women. Whilst women must not be criminalised for engaging in prostitution, the men who buy and sell them for sex must be if demand for prostitution and trafficking in women is to be reduced.
Surrogacy. Parentage orders in NSW currently prohibit commercial surrogacy; however, the bill will allow for such parenting orders even if the child has been bought from outside NSW. The bill further weakens existing prohibitions by giving courts more discretion to grant parenting orders.
Women in need of crisis support. If enacted, this bill will eliminate female-only crisis care, critical for trauma-sensitive support. Underfunded crisis shelters that rely on public funding already struggle to exclude men from their facilities, hindering their capacity to support women escaping male violence.
Prisons. If enacted, this bill will further entrench the “right” of male-bodied people to be considered for accommodation in women’s prisons. Australia has previously assured the UN CEDAW Committee that Australia accommodates female and male prisoners separately to provide “a measure of protection against gender-based violence,” (See Australian Government, March 2018, List of issues and questions in relation to the eighth periodic report of Australia, para 138.). But this is not true. Moreover, under this bill, female prison, security, and other officers conducting searches will not be able to refuse to search a male if that male expresses a preference for a female officer to search him.
Health facilities and care. Under this bill, males who express a female identity will be permitted to access female-only health facilities such as female-only hospital wards, impacting women’s safety, privacy, and dignity. De-sexed language — which is already normalised in NSW — will result in confused messaging, with serious implications for the sex-specific health care of women and girls. This messaging that can be especially confusing for migrant and refugee women, and arguably amounts to indirect discrimination. Furthermore, blurred lines between biological sex and gender identity have led to serious medical errors, jeopardising the clinical standards of health professionals.
Sport. Despite a limited carve-out, this bill makes female-only sporting activities difficult, and actually illegal for children under 12. This is despite puberty beginning in boys as young 9, this exposes girls to risks to safety from larger, stronger, faster males. And despite existing exclusions in this area under federal sex discrimination legislation, female-only sporting categories have already been widely compromised — and, indeed, change rooms and toilets (impacting privacy and dignity) — in NSW.
Lesbians. Lesbians will no longer be able to exclude from their events people born male but who identify as lesbian, impacting both their dignity and safety. Lesbians are already subject to harassment from activists and are compelled to go underground to celebrate lesbian culture and meet other same-sex attracted women.
The Committee must allow all citizens to participate – and not just those it selects and it must ensure that citizens are given adequate time to prepare and make submissions. Moreover, political parties must allow a conscience vote on legislation of this nature as it will impact women and others from across the political spectrum.
Affiliation of Australian Women's Action Alliances 