Parliamentary committee recommends councils should allow transgender, intersex people to choose which toilet they use

Councils have been told they should update rules on age limits for kids in toilets for the opposite sex, while rules for trans and intersex people should also change.

Councils should change their bylaws to allow transgender, intersex and gender diverse people to choose which public toilet they use, a parliamentary committee has recommended.

The committee also says age limits on children entering toilets of the opposite gender with their parents should be removed, and instead anyone “vulnerable” should be allowed entry.

But the advice has so far gone largely unheeded, with just two councils having made the changes and another declaring a view they are unnecessary.

The inquiry started during the term of the last parliament and extended into the current term under Labor chair Irene Pnevmatikos. Picture: Supplied

The Legislative Review Committee – made up of Labor, Liberal and SA-Best MPs – launched an inquiry in 2021 after Tea Tree Gully council passed a by-law banning children older than four from going with their parents into toilets of the opposite gender. The maximum penalty for breaching the by-law is $312.50.

The inquiry started during the term of the last parliament, when the committee was chaired by Liberal Nicola Centofanti, and extended into the current term under Labor chair Irene Pnevmatikos.

A report tabled in parliament last year says the committee was concerned the age limit, which differs depending on the council, “does not account for the variations in maturity and needs of children”.

Another concern was the language “the opposite sex” may be discriminatory to a person who does not identify as either male or female.

To address these issues, it came up with a model by-law that exempts more people from having to use the toilet of their own gender.

The rule would not apply to people who are intersex, transgender or gender diverse, or to a vulnerable person being assisted by a parent or carer, as well as to people with a disability or someone assisting them, or in the event of a “genuine emergency”.

Councils were notified of the recommendation last year, but so far only Flinders Ranges and Karoonda East Murray have tabled the changes in state parliament.

Elliston Council said it would not be amending its by-laws because people who do not identify as having a particular gender are already covered under state legislation interpretation laws..

Lisa Michael, who visited Helicopter Park in North Adelaide with her five-year-old son, Samuel, welcomed the recommendation to remove age restrictions.

Lisa Michael, pictured in North Adelaide with her five-year-old son Samuel, welcomed the recommendation to remove age restrictions. Picture: Keryn Stevens

In the City of Adelaide, children under eight are exempt from the by-law, which prevents Ms Michael from taking her other son, 11-year-old Christian, to the toilet.

“He’s autistic. I won’t let him go by himself ... you don’t know what type of people are actually in there,” he said.

A spokesman for Premier Peter Malinauskas, who is in Brisbane for meetings, said he was not familiar with the detail of the committee’s report and declined to comment.

Opposition local government spokesman Sam Telfer said “the age of accompanied minors into public conveniences was the subject of the committee”.

“Our representatives had concerns about the inconsistency of council by-laws across the state,” he said.

A spokesman for the LGA said the association supported the use of inclusive language, and many existing by-laws are due to expire this term of parliament – giving councils the opportunity to review them.

Ilia Houridis, director of city shaping at the City of Adelaide, said the council was scheduled to review its public toilets by-law by 2025.

“Our process will include research and analysis to identify and understand any issues and opportunities for improvement,” she said.