Submission re Exposure Draft Crimes Legislation (Offences Against Pregnant Women) Bill 2020
Director, Law Enforcement and Crime
NSW Department of Communities and Justice
GPO Box 31
Sydney NSW 2001
29 January 2021
To whom it may concern
Not all pregnant people are women.
That fact may be disappointing, even alarming, to some people – including a certain (in)famous children’s author.
But to ignore it is to deny reality, and live in a world that is no less fantasy than the stories in that author’s books.
The law should reflect reality rather than fantasy.
Unfortunately, the Exposure Draft Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not adequately engage with the real world in 2021.
Instead, it consistently refers to the people it intends to protect as pregnant women, including in the primary provision which establishes circumstances of aggravation under the Crimes Act 1900 (NSW), with proposed sub-section 9(1) stating:
‘It is a circumstance of aggravation for an offence against this Act (the relevant offence) if-
(a) the relevant offence is committed against a pregnant woman, and
(b) the act of omission that constitutes the relevant offence causes the destruction of the foetus of the woman.’
This creates at least three potential problems in relation to non-binary people, and trans men, in NSW[i] who are currently or will in the future become pregnant.
First, some people may attempt to argue this wording would therefore mean such aggravation does not apply in relation to the destruction of a foetus of a non-binary person or trans man who was pregnant.
This problem is likely the easiest to overcome, with sub-section 8(1) of the Interpretation Act 1987 (NSW) providing that ‘[i]n any Act or instrument- a word or expression that indicates one or more particular genders shall be taken to indicate every other gender.’
In this situation, woman may consequently be interpreted by courts to also include non-binary people and trans men – although I would appreciate confirmation from the Department of Communities and Justice that this interpretation is correct, and that the foetuses of non-binary people and trans men are not considered less important than the foetuses of women under this proposed law.
The second problem is more difficult to overcome, and that is because the repeated use of the phrase pregnant women – without explicit recognition of the pregnancies of other people – itself reinforces the invisibilisation and marginalisation of those people.
Non-binary people and trans men who are or will in the future become pregnant will see a law that does not include them in its text.
This problem is also very easy to overcome, provided there is sufficient parliamentary support to treat all people equally under the law. That is to simply replace the phrase pregnant woman with pregnant person, both in the title of the legislation and throughout.
The third problem is one that will be created by the Bill for the future.
At some point – whether this year, this term, or later this decade – NSW will hopefully join the majority of Australian jurisdictions in allowing trans and gender diverse people to amend their birth certificates without requiring surgery or other invasive medical procedures beforehand.[ii]
That change would ensure the Births, Deaths and Marriages Registration Act 1995 (NSW) accepts the existence of all trans and gender diverse people, and therefore of non-binary people and trans men who can become pregnant.
When that reform is finally passed, the already strong case to amend the phrase pregnant woman to pregnant person in the current Bill will become overwhelming.
In my view, it makes absolutely no sense to introduce flawed legislation today knowing both that it does not reflect lived experience now and that it will need to be changed in the not-too-distant future.
I should note at this point that, if the provisions of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 were already part of existing law, this would not be the highest priority for reform.
It is clearly far less important than amendments to the Births, Deaths and Marriages Registration Act itself, to grant trans and gender diverse people in NSW the right of self-determination over their own gender identity.
And it is far less urgent than stopping the One Nation Education Legislation Amendment (Parental Rights) Bill 2020, which would erase a generation of trans and gender diverse students in classrooms across the state.[iii]
Nevertheless, that still does not justify the introduction of a new law that simply entrenches old mistakes, especially when those mistakes can be so easily avoided by substituting one word.
Finally, I have written the above submission as an advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. I am also someone who supports the right to choose for people who are pregnant.
I have taken at face value the statements on the Department of Communities and Justice website, and in the Premier and Attorney General’s media release of 10 November 2020,[iv] advising that ‘[t]he proposed amendments do not affect existing laws on abortion.’
If those statements are not accurate, then I defer to the expertise of reproductive rights organisations and support any amendments which are necessary to protect the hard-fought, and hard-won, right to reproductive choice in NSW.
In conclusion, I would like to reiterate my original point – that the law should reflect reality, not fantasy.
In the real world, there are already, and will be in the future, non-binary people and trans men who are pregnant. The wording of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not reflect this reality. It should be changed.
Thank you for the opportunity to make a submission on this draft legislation. Please do not hesitate to contact me at the details provided should you require further information.
[i] This includes people who have updated their identity documentation to reflect their gender identity in Australian jurisdictions which do not require surgery or other invasive medical procedures beforehand. Of course, it also includes many people in NSW who are currently unable to do so because of the inappropriate and unjustified restrictions in section 32B of the Births, Deaths and Marriages Registration Act 1995 (NSW). However, despite what that law may say, in reality – in their day-to-day lives – these people are not women.
[ii] For more on this issue, see: Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.