LGBT rights in Australia

LGBT rights in Australia

Same-sex sexual activity legal? Always legal for women; legal for men in all states and territories since 1997
Equal age of consent in all states and territories since 2016
Gender identity/expression Change of sex recognised in all jurisdictions; some require divorce if married and sexual reassignment surgery
Military service Lesbian/gay/bi personnel allowed to serve openly since 1992; trans personnel allowed to serve openly since 2010
Discrimination protections Federal protections for sexual orientation, gender identity and intersex status since 2013; also protected by state and territory laws
Family rights
Recognition of
relationships		 Unregistered de facto unions under federal and most state and territory laws
Civil Unions in ACT
Civil Partnerships in QLD
Domestic partnerships in NSW, VIC, TAS, SA
Unregistered de facto unions only in WA, NT
Restrictions:
 Same-sex marriage prohibited under federal law since 2004; see History of same-sex marriage in Australia
Adoption Yes in TAS, ACT, NSW, WA, VIC and QLD
No in NT and SA

Lesbian, gay, bisexual, transgender (LGBT) rights in Australia have gradually progressed since the late 20th century to the point where LGBT people have most of the same rights and protections as other residents, with the notable exception of marriage.[1] The 2016 ILGA report on state-sponsored homophobia suggests that Australian policy lags those of Western world peers such as the United States, United Kingdom and New Zealand due to the lack of same-sex marriage and exposing LGBT asylum seekers to potential persecution by processing and resettling unauthorised arrivals in homophobic countries such as Papua New Guinea and Nauru.[2][3]

Australia is a federation, with many laws affecting LGBT and intersex rights made by its states and territories. The states and territories progressively repealed their colonial era anti-homosexuality laws between 1975 and 1997.[4] Each jurisdiction has had an equal age of consent for sexual acts since 2016. Several jurisdictions began granting domestic partnership benefits and civil unions to same-sex couples from 2003 onwards, with federal law recognising same-sex couples as de facto unions. Same-sex marriage legislation has been proposed to the Commonwealth Parliament multiple times, but has been rejected on all occasions. Marriage is defined by federal law as the union of a man and woman. The Australian Capital Territory's attempt to legalise same-sex marriage[5] was struck down by the High Court of Australia on the grounds that only the federal parliament has the constitutional and legal authority to do so.[6] Overseas same-sex marriages are recognised by Tasmania, Queensland, New South Wales and Victoria but not by the Australian Capital Territory, South Australia, Northern Territory or Western Australia.[7]

Most states and territories allow both joint and step-parent same-sex adoption. Discrimination on the basis of sexual orientation and gender identity or expression is prohibited in every state and territory, with overlapping federal protections for sexual orientation, gender identity and intersex status effective from 1 August 2013.

Transgender and intersex Australians are able to change their legal gender on documents including their birth certificate in all states and territories and are recognised as their gender, but advocates seek the abolition of the requirements in some states that applicants cannot be married and must undergo sexual reassignment surgery.[8] Australians outside the gender binary can legally register a 'non-specific' sex on their personal legal documents.

Australia has been referred to by publications as one of the most gay-friendly countries in the world, with recent polls indicating that most Australians support same-sex marriage.[9] A 2013 Pew Research poll found that 79% of Australians agreed that homosexuality should be accepted by society, making it the fifth most supportive country surveyed in the world.[10][11] Because of its long history in regard to LGBT rights and its annual three-week-long Mardi Gras festival, Sydney has been named one of the most gay friendly cities in the country and in the world.[12]

Terminology

The term LGBTI is now used in Australia, rather than LGBT, with the I denoting intersex people. Organisations that include intersex people as well as LGBT people include the National LGBTI Health Alliance and community media.[13][14] Also used are the more-inclusive terms LGBTQI[15] and LGBTQIA, with the A including Asexual people.[16]

Laws regarding sexual activity

Upon colonisation in 1788, Australia inherited laws from the United Kingdom including the Buggery Act of 1533. These were retained in the criminal codes passed by various 19th century colonial parliaments, and subsequently by state parliaments after Federation.[4] Same-sex sexual activity between men was considered a capital crime, resulting in the execution of people convicted of sodomy. Different jurisdictions gradually began to reduce the death penalty for sodomy to life imprisonment, but Victoria retained it until 1949.[4]

Australian states and territories gradually repealed their sodomy laws over a 22 year span between 1975 and 1997 as support for gay law reform grew.[17]

South Australia was the first jurisdiction to decriminalise male homosexual activity on 17 September 1975, with the Australian Capital Territory's decriminalisation proposed in 1973 and approved by the Fraser federal government with effect from 4 November 1976.[4] Victoria followed on 23 December 1980, although a "soliciting for immoral purposes" provision added by conservatives saw police harrassment continue in that state.[17] The next states to decriminalise male homosexuality were the Northern Territory (4 October 1983), New South Wales (22 May 1984) and after four failed attempts, Western Australia (7 December 1989).[4] Western Australian conservatives required a higher age of consent and an "anti-promotion" provision as a trade-off for legalisation.[4]

Queensland legalised male same-sex activity from 29 November 1990 following a change of government.[4] This left Tasmania, whose government refused to repeal its sodomy law. This led to the case of Toonen v. Australia in which the United Nations Human Rights Committee ruled that sodomy laws violated the International Covenant on Civil and Political Rights. Tasmania's continued refusal to repeal the offending laws led the Commonwealth Government to pass the Human Rights (Sexual Conduct) Act 1994,[18] legalising sexual activity between consenting adults throughout Australia and prohibiting laws that arbitrarily interfere with the sexual conduct of adults in private. In the 1997 case of Croome v Tasmania, Rodney Croome applied to the High Court of Australia to strike down the Tasmanian law as inconsistent with federal law. The Tasmanian Government repealed the relevant Criminal Code provisions after failing to have the matter thrown out.[19]

Age of consent

The age of consent laws of all states and territories of Australia apply equally regardless of the gender and sexual orientation of participants. The age of consent in all states, territories and on the federal level is 16, except for Tasmania and South Australia where it is 17.[20] The age of consent was equalised in 2002 by Western Australia and in 2003 by New South Wales and the Northern Territory.[21] The last state to equalise its age of consent was Queensland in 2016, when it brought the age of consent for anal intercourse into line with vaginal intercourse and oral sex from 18 to 16 years of age.[20][22]

Historical conviction expungement

Four of the eight Australian jurisdictions allow those convicted of historical consensual adult gay male same-sex sexual activity to apply for the conviction to be expunged. After a conviction is expunged the individual can claim not to have been convicted or found guilty of that offence, ensuring they will not be required to disclose such information and that the conviction does not show up on a police records check.[23] Without the law, men who had been convicted of historical sodomy offences were at a disadvantage, including being subject to restrictions on travel and in applying for some jobs.[24][25]

The dates when these laws took effect were as follows:

An expungement scheme also operates in Norfolk Island, where NSW laws apply.

Sex and gender recognition

Birth certificates and driver licences are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. The requirements for a person's change of sex to be recognised and amended in government records and official documents depend on the jurisdiction.[34] The Australian Human Rights Commission has suggested that of the current considerations, such as a person's marital status or level of medical treatment, should be irrelevant to the recognition of a person's sex or gender identity.[34][35]

Birth certificates

Birth certificates are issued by States and Territories. In many States, sterilisation is (or has been) required for trans people to obtain recognition of their preferred gender in cardinal identification documents, although the High Court ruled in the 2012 case of AB v Western Australia that two transgender men who had undergone mastectomies and hormone treatment did not need to undergo sterilisation to obtain a WA gender recognition certificate.[36] For example, New South Wales Registry of Births Deaths & Marriages requires that trans people must have "undergone a sex affirmation procedure"[37] In 2014, the Australian Capital Territory also passed legislation that removed the surgery requirement for changing the sex marker on birth certificates.[38]

Organisation Intersex International Australia asserts that identification changes are managed differently for intersex people who wish to change documentation. They describe this as an administrative correction.[39]

Non-binary gender recognition

Norrie May-Welby is a Scottish-Australian who became the first transgender person in Australia to publicly pursue a legal status of neither a man nor a woman. That status was subject to appeals by the State of New South Wales.[40]

In April 2014, the High Court of Australia unanimously ruled in a case titled NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11[41][42] that, having undergone sex affirmation surgery, androgynous person Norrie was to be registered as neither a man nor a woman with the NSW Registry of Births, Deaths and Marriages.[43] The decision follows previous regulations and legislation that recognises a third gender classification, and establishes that Australia's legal system recognises and permits the gender registration of 'non-specific', as the judges found in the Norrie case.[43]

Passports

Commonwealth guidelines issued in May 2013, and taking effect from 1 July 2013, enable any adult to choose to identify as male, female or X. Documentary evidence must be witnessed by a doctor or psychologist, but medical intervention is not required.[44]

Alex MacFarlane was reported as receiving a passport with an 'X' sex descriptor in early 2003. This was stated by the West Australian to be on the basis of a challenge by MacFarlane, using an indeterminate birth certificate issued by the State of Victoria.[45][46][47] It is stated on Councillor Tony Briffa's website that "my birth certificate is silent as to my sex".[48][49] having previously been acknowledged as the world's first openly intersex mayor.[50][51]

Australian government policy between 2003 and 2011 was to issue passports with an 'X' marker only to people who could "present a birth certificate that notes their sex as indeterminate"[52][53]

In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened availability of an X descriptor to all individuals with documented "indeterminate" sex.[54][55] The revised policy stated that "sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended."[56]

Medical involvement

Transgender people currently require treatment and support by medical professionals if they wish to change their gender on official government documents. For example, changing a person's gender on a passport requires a doctor's note confirming that the individual is undergoing appropriate medical treatment. The Australian Human Rights Commission has recommended that people should be able to change their sex on government documents through simple administrative procedures, with no medical involvement required.[35]

Gender dysphoria treatment

Medical treatment for gender dysphoria is generally divided into two stages:[57]

Transgender Australians are generally not eligible for sexual reassignment surgery until they turn 18 years old.[59]

Access by children

Medical treatment is available to a child who has been diagnosed with gender dysphoria.[58] A diagnosis requires that the child feels and verbalises a strong desire to have a different gender for at least six months.[57]

A number of requirements must be satisfied in order for a transgender child to receive treatment. Stage 1 treatment in Australia is provided in accordance with the Endocrine Society's Clinical Practice Guideline "Endocrine Treatment of Transsexual Persons"[60] and involves:[58][59]

Access to Stage 2 treatment requires the following:[58]

Court involvement

In the 2004 case Re Alex : Hormonal Treatment for Gender Identity Dysphoria[61] the Family Court of Australia held that both Stage 1 and Stage 2 treatments for gender dysphoria were non-therapeutic "special medical procedures" for the purposes of the Family Law Act 1975, which meant that even if a child's parents consented, the Family Court's approval was necessary to ensure the child's welfare was protected. This was based on the principles of Marion's Case, in which the High Court of Australia ruled that parental consent was insufficient for "special medical procedures", and instead court approval was necessary to ensure they were in the best interests of the child.[62] Since that time, the Family Court has heard an increasing number of applications for child gender dysphoria treatment.[57]

This approach was relaxed in several 2013 judgments,[63][64] which were approved by the Full Court of the Family Court in Re Jamie.[65] In these cases, the judges accepted that the medical treatments were therapeutic in nature and that parents could consent to Stage 1 treatment for their child without court oversight.[57] Court approval would only be necessary for Stage 1 treatment if there was a disagreement between the child, their parents or the treating doctors about the treatment.[66]

When required to rule on a transgender child's access to treatment, the Family Court must assess the child's Gillick competence; in other words, whether the child is in a position to consent to the treatment by fully understanding its nature, effects and risks.[67] If the Court finds the child is Gillick-competent, the child's wishes must be respected. If not, the Court must then decide whether the proposed treatment is in the child's best interests.[68]

Australia is the only country in the world which requires court involvement in the process.[69] Several families with transgender children have called for the Family Court's role to be abolished, given that the legal process simply "rubber stamps" the expert opinions of medical practitioners and imposes significant financial and emotional costs on applicants.[67] The legal process cost about $30,000 in 2016.[67] Opponents of the current system also point to reports that some transgender teenagers werer risking their lives sourcing cross-sex hormones on the black market due to the cost and delays caused by the court process.[69]

In 2016, Family Court Chief Justice Diana Bryant acknowledged the difficulties of the existing process and promised it would be simplified.[70] Bryant had earlier suggested in 2014 that the High Court of Australia should reconsider the case law requiring court supervision for the medical treatment of transgender children.[71]

Access by adults

Gender reassignment surgery is available in Australia with the costs of some, but not all treatments for trans people covered by the national Medicare public health scheme.[72] Trans advocates have campaigned for full Medicare funding for various treatments that may be currently be unaffordable for transgender people, such as breast surgery, facial surgery and hormone treatments, among others.[72] They have also raised concerns about a lack of Australian medical staff with the necessary expertise, causing many transgender Australians to travel overseas for surgery to countries such as Thailand.[72] Members of the trans community have also called for greater access to mental health services given the increased demand, with delays of 12 to 18 months recorded in Victoria for access to necessary psychological and psychiatric services before hormone therapy can be accessed.[73]

Intersex rights

Relationship to LGBT rights

Although Australian terminology has expanded from "LGBT" to "LGBTI" to include intersex people, their experience remain poorly understood in the absence of substantial research in the area.[74] Intersex status was previously considered a subset of gender identity, as reflected in the anti-discrimination law definitions of most states and territories of "gender identity" to include people with indeterminate sexual characteristics[75][76] Organisation Intersex International Australia considers this inaccurate on the basis that "intersex" people may have any of 40 diverse physical sex characteristics, and may have a wide range of gender identities, similar to non-intersex people.[76]

Coerced medical intervention

A key area of concern facing intersex people is that as infants they are often subjected to medical operations to "normalise" their genitalia and obscure their non-binary sex characteristics.[77] These procedures are criticised by intersex advocates on the basis that they compromise the individual rights to bodily autonomy, integrity and dignity, drawing parallels to female genital mutilation.[74][78]

In October 2013, the Australian Senate published a report entitled 'Involuntary or coerced sterilisation of intersex people in Australia'. The Senate found that "normalising" surgeries are taking place in Australia, often on infants and young children.[79][80][81][82][83] They commented, "normalisation surgery is more than physical reconstruction. The surgery is intended to deconstruct an intersex physiology and, in turn, construct an identity that conforms with stereotypical male and female gender categories" and, "Enormous effort has gone into assigning and ‘normalising’ sex: none has gone into asking whether this is necessary or beneficial. Given the extremely complex and risky medical treatments that are sometimes involved, this appears extremely unfortunate".[79] The report makes 15 recommendations, including ending cosmetic genital surgeries on infants and children and providing for legal oversight of individual cases.[79] The president of Organisation Intersex International Australia states that "The Senate Committee has changed the debate on the correct treatment of intersex differences. If adopted, its recommendations will effectively protect the rights of intersex children and future adults."[84]

On 11 November 2014, the New South Wales Legislative Council in Australia passed a motion recognising stigma and human rights abuses, and calling on that State government to "work with the Australian Government to implement the recommendations" of the 2013 Senate committee report.[85][86]

Recognition of same-sex relationships

Federal recognition

Australia recognises same-sex relationships – including same-sex couples married in foreign jurisdictions or sub-jurisdictions – as de facto unions. Following the Australian Human Rights Commission's report Same-Sex: Same Entitlements[87] and an audit of Commonwealth legislation, in 2009 the Australian Government introduced several reforms designed to equalise treatment for same-sex couples and same-sex couple families. The reforms amended 85 Commonwealth laws to eliminate discrimination against same-sex couples and their children in a wide range of areas. The reforms came in the form of two pieces of legislation, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-Superannuation) Act 2008.[88] These laws amended several other existing Commonwealth Acts to equalise treatment for same-sex couples and any children such couples may be raising with respect to a range of areas including taxation, superannuation, health, social security, aged care and child support, immigration, citizenship and veterans affairs.[89]

For instance, with relation to social security and general family law, same-sex couples were not previously recognised as a couple for social security or family assistance purposes. A person who had a same-sex de facto partner was treated as a single person. The reforms ensured that same-sex couples were (for the first time under Australian law) recognised as a couple akin to opposite-sex partners.[89] Consequently, a same-sex couple receives the same rate of social security and family assistance payments as an opposite-sex couple.[88] Such reforms however, do not completely equalise treatment for same-sex couples, who for instance, do not have the same rights and entitlements as married heterosexual couples do with respect to workers' compensation death benefits, pensions for the partners of Defence Force veterans and access to carer's leave.[90] Despite large equality of rights, Australia does not have a national registered partnership, civil union or same-sex relationship scheme.

From 1 July 2009 amendments to the Social Security Act 1991 meant that customers in a same-sex de facto relationship are recognised as partnered for Centrelink and Family Assistance Office purposes. All customers who are assessed as being a member of a couple have their rate of payment calculated in the same way.[91]

State and territory recognition

Most states and territories in Australia have civil union or domestic partnership laws, aside from Western Australia and the Northern Territory. Of the States that do have domestic partnerships, South Australia is the only one that lacks legislation for domestic partnership registries.

Same-sex couples may enter into civil unions in the Australian Capital Territory and civil partnerships in Queensland. Both unions allow couples to have state-sanctioned ceremonies and Queensland's law is commonly referred to as civil unions. In New South Wales, Tasmania and Victoria, same-sex couples can enter into domestic registered partnerships. These provide conclusive proof of the existence of the relationship, thereby gaining the same rights afforded to de facto couples under state and federal law without having to prove any further factual evidence of the relationship. In this way, a registered relationship is similar to a registered partnership or civil union in other parts of the world.[92] Victoria's domestic partnership laws also allow any couple the option of having an official ceremony when registering their relationship. South Australia also allows domestic registered partnerships, though they must prove their relationship through a legal agreement known as a Domestic Partnership Agreement, a slightly more cumbersome process than in the other states. In Western Australia and the Northern Territory, same-sex couples must often seek juridical approval to prove a de facto relationship exists. Norfolk Island from 1 July 2016, have been incorporated into NSW legislation, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016.[93][94][95]

As of December 2015, four Australian states (Tasmania, New South Wales, Queensland and Victoria), comprising 80% of Australia's population, recognise same-sex marriages and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.[96]

State/Territory Relationship recognition scheme Register Ceremony Overseas same-sex marriages/unions recognised Pending legislation
ACT Civil unions -
New South Wales† Domestic partnerships -
Northern Territory Unregistered cohabitation may be recognised as a 'de facto relationship' -
Queensland Civil partnerships -
South Australia Domestic partnerships (Pending) (Pending) Relationships Register Bill 2016 to establish a relationship registry and recognise overseas same-sex marriages[97][98]
Tasmania Domestic partnerships -
Victoria Domestic partnerships -
Western Australia Unregistered cohabitation may be recognised as a 'de facto relationship' -

† Including Norfolk Island, where NSW laws apply

Same-sex marriage

As a result of the Howard Government's amendment to the Marriage Act 1961 in 2004, federal law in Australia officially bans same-sex marriage.[99] Recent attempts to legalise same-sex marriage nationwide have failed in the Australian Parliament.[100] The current Turnbull Government has a policy opposing same-sex marriage though proposing a plebiscite on the issue be held sometime after the 2016 federal election. The opposition Australian Labor Party supports same-sex marriage in its party platform, though it allows its parliamentary members to exercise their consciences on same-sex marriage legislation.

The Australian Capital Territory passed laws instituting territory-based same-sex marriage, which was rejected by the High Court of Australia. The High Court ruled against the law on 12 December 2013 contending that only federal parliament has the constitutional authority to legislate on the subject.[101]

The High Court ruled in December 2013 that the Australian Capital Territory's same-sex marriage law was invalid, as s51(xxi) grants the Commonwealth Parliament the power to legislate with regard to marriage, and the federal definition of marriage overrides any state or territory definition under s109. The court did find, however, that "marriage" for the purposes of s51(xxi) includes same-sex marriage, thus clarifying that there is no constitutional impediment to the Commonwealth legislating for same-sex marriage in the future.[102]

Immigration and sponsorship

In 1985, changes were made to the Migration Act 1958 (Cth), after submissions from the Gay and Lesbian Immigration Task Force (GLITF), to create an interdependency visa for same-sex couples. The visa allows Australian citizens and permanent residents to sponsor their same-sex partners into Australia. Unlike married couples, immigration guidelines require de facto and interdependent partners to be able to prove a twelve-month committed relationship, but it can be waived if the couple is registered by the State registrar of births, deaths and marriages. The temporary and permanent visas (Subclasses 310 and 110) allow the applicant to live, work, study and receive Medicare benefits in Australia.[103][104]

Inheritance and property rights

Without the automatic legal protections that married couples receive under the law with regard to inheriting assets from their partners, same sex couples have had to take specific legal actions. Individuals are not entitled to a partial pension if their same-sex partner dies. Gay and de facto couples who separate did not have the same property rights as married couples under federal law and were required to use more expensive state courts, rather than the Family Court, to resolve disputes. The plan to grant equivalent rights to gays and de factos had been up for discussion since 2002, and all states eventually agreed, but the change was blocked because the Howard government insisted on excluding same-sex couples.[105]

In June 2008, the Rudd Government introduced the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 to allow same-sex and de facto couples access to the federal Family Court on property and maintenance matters, rather than the state Supreme Court. This reform was not part of the 100 equality measures promised by the Government but stem from a 2002 agreement between the states and territories that the previous Howard Government did not fulfill.[106][107] Coalition amendments to the bill failed and it was passed in November 2008.[108]

Discrimination protections

Prior to 1 August 2013 Australia did not comprehensively outlaw discrimination based on sexual orientation at the federal level. However, in response to Australia's agreement to implement the principle of non-discrimination in employment and occupation pursuant to the International Labour Organisation Convention No.111 (ILO 111), the Human Rights and Equal Opportunity Commission (HREOC) Act established the HREOC in 1986, and empowers it to investigate complaints of discrimination in employment and occupation on various grounds, including sexual orientation, and to resolve such complaints by conciliation. If it cannot be conciliated, the Commission prepares a report to the federal Attorney-General who then tables the report in Parliament. Employment discrimination on the ground of "sexual orientation" is also rendered unlawful in the Fair Work Act 2009, allowing complaints to be made to the Fair Work Ombudsman.[109]

The Human Rights (Sexual Conduct) Act 1994 provided that sexual conduct involving only consenting adults (18 years or over) acting in private would not be subject to arbitrary interference by law enforcement. This applies to any law of the Commonwealth, State or Territory.[110]

In late 2010, the Gillard Labor Government announced a review of federal anti-discrimination laws, with the aim of introducing a single equality law that would also cover sexual orientation and gender identity.[111] This approach was abandoned and instead on 25 June 2013, the Federal Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

From 1 August 2013, discrimination against lesbian, gay, bisexual, transgender, and intersex people became illegal for the first time under national law. Aged care providers who are owned by religious groups will no longer be able to exclude people from aged care services based on their LGBTI or same-sex relationship status. However, religious owned private schools and religious owned hospitals are exempt from gender identity and sexual orientation provisions[112] in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.[113] No religious exemptions exist on the basis of intersex status.[112]

Aside from Commonwealth anti-discrimination laws, each of the states and territories have their own laws which protect LGBTI people from discrimination.

Gay panic defence abolition

Historically Australian courts allowed the use of the "homosexual advance defence" (more commonly known as the gay panic defence)[114] for violent crimes such as murder, where an accused could argue that an unwanted homosexual advance from another man provoked him to lose control and respond violently, which could lead to a killing being downgraded from murder to manslaughter.[115]

Although its use in Australia was first recorded in the 1992 Victorian case of R v Murley, the defence was recognised nationwide by a majority of the High Court of Australia in the 1997 case of R v Green.[115] This led to calls for the defence to be abolished by legislation.[116]

A number of states have since abolished the defence of provocation altogether - these include Tasmania, New South Wales,[117] Western Australia and Victoria.[116] The Australian Capital Territory and Northern Territory have taken a more targeted approach to reform, specifically abolishing the availability of non-violent homosexual advances as a defence.[116]

As of 2016, both Queensland and South Australia are the only jurisdictions within Australia not to have repealed the homosexual advance defence, although Queensland has introduced legislation to abolish the "unwanted sexual advance".[118]

School anti-bullying programs

The Safe Schools Coalition Australia seeks to combat anti-LGBTI abuse or bullying, which research suggested was prevalent across Australian schools.[119] Initially established in Victorian schools in 2010,[120] the program was launched nationwide in 2014 under the Abbott Government.[121] The program has received support from a majority of state governments, LGBTI support groups and other religious and non-governmental organisations such as beyondblue,[122] headspace and the Australian Secondary Principals Association.[123]

However, the program faced criticism in 2015 and 2016 from social conservatives including the Australian Christian Lobby, Bill O'Chee, George Christensen and Joe Bullock for teaching age-inappropriate sexuality and gender concepts in schools,[124] while others criticised the extreme political views of Roz Ward, a key figure in the program.[125][126] Petitions were also delivered against the program by members of Australia's Chinese and Indian commmunities.[127]

The concerns led to a review under the Turnbull Government, which recommended a number of changes such as restricting the program to high schools, removing role playing activities and requiring parental consent before students take part.[128]

LGBT asylum seeker protections

Australia's strict policy of mandatory detention and offshore processing for unauthorised boat arrivals has been criticised by non-government organisations including the International Lesbian, Gay, Bisexual, Trans and Intersex Association, Human Rights Watch and Amnesty International, with particularly severe consequences for LGBT asylum seekers.[2][129] Gay asylum seekers sent to Manus Island for processing resettlement face persecution under Papua New Guinean law for their sexuality, with homosexual acts criminalised and a potential penalty of 14 years imprisonment.[130] They are warned in an orientation presentation by the Salvation Army that "Homosexuality is illegal in Papua New Guinea. People have been imprisoned or killed for performing homosexual acts."[130] This places them in the position of being required to declare their sexuality to be eligible for refugee protection yet liable to face persecution from other people and under local laws.[129] Gay asylum seekers also face bullying, assault and sexual abuse on Manus Island from others, including officials and other refugees, due to their sexuality.[2][130] Australia faces accusations from refugee advocates that it has violated its refoulement obligations under international law by exposing gay asylum seekers to such dangers.[130] After the Supreme Court of Papua New Guinea ordered the Manus Island immigration detention centre closed on the basis that it breached constitutional guarantees of liberty, the Australian government confirmed the centre would close but did not reveal what would happen to the detainees.[131] The 2016 ILGA report on state-sponsored homophobia also noted the case of two gay Iranian asylum seekers resettled by Australia on Nauru who were "virtual prisoners" because they were "subjected to physical attacks and harassment by the local community, as they have been identified as being in a same-sex relationship".[3][132][2]

Adoption and parenting rights

States and territories make laws with respect to adoption and child-rearing. The laws with respect to same-sex parenting and adoption rights vary in each state and territory. Same-sex couples can jointly adopt in New South Wales, the Australian Capital Territory, Western Australia, Tasmania, Victoria and Queensland. The Northern Territory and South Australia ban same-sex couples from adopting jointly, though legislation allowing same-sex adoption is currently pending in South Australia. The 2011 Australian census counted 6,300 children living in same-sex couple families, up from 3,400 in 2001, make up only one in a thousand of all children in couple families (0.1%).[133] Altruistic surrogacy is legal in all Australian states and territories except Western Australia and South Australia,[134] though commercial surrogacy is banned nationwide. In recent years, a dramatic increase in the use of overseas surrogacy programs has occurred amongst both same-sex and opposite-sex couples, creating some unique legal concerns with respect to citizenship and parenting rights.[135][136][137] It is believed that only 1 in 20 surrogacy arrangements occur in Australia, with almost all involving foreign surrogates mainly from South-East Asia and the United States.[134]

LGBT adoption in Australia as of 2016, showing it is permitted by all jurisdictions except for South Australia and the Northern Territory
  Joint adoption and stepparent adoption legal
  Joint adoption and stepparent adoption illegal
State/Territory Same-sex couple joint petition LGBT individual adoption Same-sex stepparent adoption
New South Wales and Norfolk Island Yes (since 2010) Yes (since 2000) Yes (since 2010)
ACT Yes (since 2004) Yes (since 1993) Yes (since 2004)
Western Australia Yes (since 2002) Yes Yes (since 2002)
Tasmania Yes (since 2013) Yes Yes (since 2004)
Victoria Yes (since 2016) Yes Yes (since 2007)
Queensland Yes (since 2016)[138] Yes (since 2016)[138] Yes (since 2016)[138]
Northern Territory No / Only in exceptional circumstances No
South Australia No (bill introduced)[139] No singles, must be an opposite-sex couple (married or cohabitating) / (bill introduced)[139] No (bill introduced)[139]

Social conditions

Public attitudes to homosexuality

A 2005 paper by the Australia Institute, Mapping Homophobia in Australia, found that 35% of people aged 14 or above considered homosexuality to be immoral, with Queensland and Tasmania having the highest levels of anti-gay sentiment and Victoria the lowest.[140] Overall the most homophobic areas in the study were the Moreton area of country Queensland (excluding the Gold Coast and Sunshine Coast), Central and South-West Queensland and the Burnie/Western district of Tasmania, where 50% considered homosexuality to be immoral, while the least homophobic were inner-city Melbourne (14%), central Perth (21%) and central Melbourne (26%).[140]

In a 2013 Pew Research poll, 79% of Australians agreed that homosexuality should be accepted by society, making it the fifth most supportive country in the survey behind Spain (88%), Germany (87%), Canada and Czech Republic (both 80%).[10][11] With a long history in regard to LGBT rights and an annual three-week-long Mardi Gras festival, Sydney has been named one of the most gay friendly cities in Australia and in the world.[12]

Indigenous LGBTI community

Gender diverse and transgender indigenous Australians are often referred to as sistergirls and brotherboys.[141][142] The level of acceptance varies with each community and its elders.[141][142] In 2015 Dameyon Bonson established Black Rainbow as a mental health support and suicide prevention service for LGBTI indigenous Australians, given that they often suffer both racism and homophobia/transphobia, and additionally are 45 times more likely to commit suicide than the general population.[143]

Military service

In early 1992 a female reservist in the Australian Army made a complaint to the Human Rights and Equal Opportunities Commission on the basis that she was dismissed on the grounds of homosexuality. The Commission called for a review of the longstanding ban on LGBT personnel in the Australian Defence Force (ADF) and in June 1992, Defence Minister Senator Robert Ray instead took the step of strengthening the existing ban on LGBT personnel by including the definition of "unacceptable sexual acts" as inclusive of sexual harassment and offences under civil and military law.[144] This led to significant outrage and in response Prime Minister Paul Keating established a special Labor Caucus Committee to examine the possibility of removing the ban on LGBT personnel in the military. By September 1992 the committee returned with a recommendation to remove the ban four votes to two, including the committee chairman Terry Aulich.[145][146] Despite opposition of reform from within certain military groups and the RSL, this recommendation received support from Human Rights Commissioner Brian Burdekin and Attorney General Michael Duffy.[147] The subsequent cabinet discussion on the issue resulted in the Keating government overturning the ban, despite the opposition of Ray within the cabinet. Following the decision, Prime Minister Keating, who had supported overturning the ban, announced that the decision "reflected community support for the removal of employment discrimination and brings the ADF into line with tolerant attitudes of Australians generally ... The ADF acknowledges there are male and female homosexuals among its members and has advised the Government that these members are no longer actively sought out or disciplined because of their sexual orientation."[148]

Currently the ADF also recognises "interdependent relationships", which include same-sex relationships, regarding benefits available to active duty members. This means equal benefits in housing, moving stipends, education assistance and leave entitlements. To be recognised as interdependent, same-sex partners will have to show they have a "close personal relationship" that involves domestic and financial support.[149] The ADF also gives equal access to superannuation and death benefits for same-sex partnerships.[150] Under the Human Rights Commission Act 1986,[151] Discrimination or harassment on the grounds of sexual orientation, be it heterosexuality, homosexuality or bisexuality, is prohibited. ADF members or APS employees are not to be asked about their sexual orientation, nor is sexual orientation, or alleged sexual orientation, to be adversely taken into consideration in promotion, posting or career development decisions.

Defence Force policy was amended to allow transgender Australians to openly serve in 2010.[152] The policy was updated following the advocacy of Bridget Clinch, who sought to transition from male to female while serving in the Australian Army.[152]

DEFGLIS Defence LGBTI Information Service Incorporated was established in 2002 to support and represent LGBTI Defence personnel and their families. The association has facilitated reforms in the ADF leading to improved recognition of same-sex partners, development of policy and guidance for members transitioning gender, and enhanced education about sexual orientation, gender identity and intersex people.

Blood donor ban

The Australian Red Cross Blood Service bans blood donations from men who have had sex with men (MSM) in the previous twelve months. Several other countries also have MSM bans ranging from one year to lifetime or permanent deferral. The policy was challenged in 2005 with the Tasmanian Anti-Discrimination Tribunal.[153][154] Four years later in May 2009, the tribunal dismissed the complaint saying that it was "unsubstantiated".[155][156] In October 2016, the Victorian Government called on the Federal Government to remove the 12 month MSM donation ban, arguing that the ban as it stood was "based more on discriminatory issues rather than on the science."[157] The next national review of the policy will take place sometime in 2017.[157]

Positions of religious faiths

Australian faith communities vary widely in their official positions towards LGBT rights, including the legalisation of same-sex marriage.[158] The dominant position in many of the Abrahamic faiths – Christianity, Judaism and Islam – is to oppose LGBT rights such as same-sex marriage, but this is not uniform across all denominations or clergy, with a number of religious leaders speaking out in favour of LGBT rights.[158][159] The Australian Christian Lobby, formed in 1995, and the Catholic Australian Family Association, formed in 1980, strongly oppose same-sex rights such as adoption and marriage.[160] However, the official positions of faiths are not necessarily shared by their membership, with a 2005 study finding that along with members of the Anglican and Uniting Churches, Catholics were among the least homophobic people in Australia in spite of their church leaders' teachings.[161] Australia's peak Buddhist and Hindhu organisations have expressed support for LGBT rights such as same-sex marriage.[162]

With LGBT rights increasingly growing in Australia, religious opponents have increasingly used religious freedom arguments to justify continuing discrimination against LGBT people on the grounds of their personal beliefs.[163] The visibility of progressive religious voices in favour of LGBTI rights has also been noted in the media, with the first interfaith pro-equality forum held in 2016.[164]

Christianity

The leaders of several Christian denominations, such as Roman Catholicism and the Anglican Church, have opposed LGBT rights. In 2007 then-Catholic Archbishop of Sydney Cardinal George Pell, stated the Roman Catholic Church continues to teach that sexual activity should be confined to married opposite-sex couples and continues to oppose legitimising any extra-marital sexual activity and any "homosexual propaganda" among young people.[165] Similarly, former Archbishop of the Evangelical Anglican Diocese of Sydney Peter Jensen vigorously opposed homosexuality, stating that accepting homosexuality is "calling holy what God called sin."[166] Their successors Anthony Fisher and Glenn Davies continued to speak against LGBT rights, particularly in the context of opposing same-sex marriage.[167] The Exclusive Brethren have also advertised against LGBT rights, such as in the lead up to the 2006 Tasmanian election.[168] However, a number of moderate Anglican leaders have called for greater debate, noting that Australian Anglicans are divided with many supporting LGBT rights.[169] Further, Catholic priest Father Paul Kelly has advocated for the abolition of the gay panic defence in Queensland to protect LGBT people from violence.[170]

Since 2003 the Uniting Church in Australia has allowed sexually active gay and lesbian people to be ordained as ministers, with each individual presbyteries given discretion to decide the matter on a case-by-case basis.[171] Other LGBT-affirming Christian organisations include Metropolitan Community Church, Acceptance for LGBT Roman Catholics and Freedom2b for Christians generally.[172]

A number of individual ministers of religion have publicised their support for LGBT rights and same sex marriage without their denomination taking an official position.[173] Father Frank Brennan has published an essay in Eureka Street arguing that while religious institutions should be legally exempt from "any requirement to change their historic position and practice that marriage is exclusively between a man and a woman" drawing a distinction between civil law and the Catholic sacrament of marriage, and argued that recognition of civil unions or same sex marriages in civil law may become necessary if the overwhelming majority of the population supported such a change.[174] Anglican dean of Brisbane Peter Catt states that same-sex marriage is needed for “human flourishing and good order in society”.[164] Baptist reverend Carolyn Francis noted that churches needed to remain relevant and welcoming, including support for LGBTI rights and same-sex marriage.[164]

Buddhism

Support for LGBT rights such as same-sex marriage from Australia's second-largest religion[175] was confirmed in 2012 by the Federation of Australian Buddhist Councils, which represents Buddhist laypeople,[162] and the Australian Sangha Association, which represents religious leaders.[176] Bodhinyana Monastery abbot Ajahn Brahm also wrote to parliament in support of same-sex marriage, noting that the institution of marriage pre-dates religion and that legalisation would alleviate human suffering.[176]

Judaism

The Progressive Jewish community in Australia broadly supports LGBT rights, whereas the Orthodox branches remain opposed.[159] Rabbi Shimon Cohen drew criticism for comparing homosexuality to incest and bestiality, and stating his support for gay conversion therapy.[177] On 5 June 2007 the Council of Progressive Rabbis of Australia, New Zealand, and Asia overturned their ban on same-gender commitment ceremonies.[178] Nearly 4 years later, on 19 May 2011 the Rabbinic Council of Progressive Rabbis of Australia, Asia and New Zealand announced their support for marriage equality under Australian law.[179] This news was broadly publicised via a media release issued by Australian Marriage Equality on 25 May 2011.[180]

Islam

The Australian Federation of Islamic Councils, a peak umbrella body for Muslim organisations, strongly opposed removing discrimination against same-sex couples in federal law. Chairman Ikebal Patel said such moves would threaten the "holy relationship" of marriage and the core values of supporting families.[181] The Grand Mufti of Australia since 2011, Ibrahim Abu Mohamed, has maintained that Islam opposes what he has termed "sexual perversions" as a "religious fact".[159] One imam sitting on the Australian National Imams Council described homosexuality as an "evil act" that spread diseases while another stated that death is the Islamic penalty for homosexuality.[159]

Australia has an openly gay imam in Melbourne, Nur Warsame, who seeks to help LGBT Muslims reconcile their faith with their sexuality.[182] Progressive Muslim voices such as Osamah Sami[183] and Muslims Against Homophobia Australia founder Alice Aslan[184] have noted the need to tackle homophobia in Australian Muslim communities.

Hinduism

Having previously been opposed, in 2015 the Hindu Council of Australia declared it would support same-sex marriage in future after a wide-ranging consultation process on the basis that it desired to support freedom and the issue was not considered at all in Hindu scriptures.[162]

Summary table

Federal

Federal Same-sex marriage De facto relationships status Registered relationships status Equal age of consent Anti-discrimination legislation Adoption and foster parenting Recognition of parents on birth certificate Access to fertility (such as ART, IVF, surrogacy, AI, etc.) Right to change legal gender
 Australia (Marriage Amendment Act 2004) (family law) (family law) (covered by state/territory law) (Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013[185]) (family law) (family law) (family law) (covered by state/territory law)

State/Territory

State/Territory Male homosexual acts legalised Expungement scheme implemented Gay panic defence abolished De facto relationships status Registered relationships status Equal age of consent Anti-discrimination legislation Adoption and foster parenting Recognition of parents on birth certificate Access to fertility (such as ART, IVF, surrogacy, AI, etc.) Right to change legal gender
 Australian Capital Territory 1976[186] 2015[187] 2004[186] 1985[186] 2004[186]
 New South Wales 1984[186] 2014[188] 2014[189] 2003[186] 1982[186] 2010[186]
 Norfolk Island (Note: since 2015, subject to NSW law) 1993[190] (under NSW law) (under NSW law) 2006[190] (under NSW law) 1993[190] (under NSW law) (under NSW law) (under NSW law) (under NSW law) (under NSW law)
 Northern Territory 1983[186] 2006[186] 2004[186]
 Queensland 1990[186] (bill pending) (bill pending) 2016[186] 2002 2016[191]
 South Australia 1975[186] / 2013 (can apply to have recorded as spent conviction, not expunged)[192] (under common law only) (domestic partnership agreement) (bill pending) 1975[186] (bill pending)[139] (ART banned) (bill pending)
 Tasmania 1997[186] (bill pending) 2003[186] 1997[186] 2013[186]
 Victoria 1981[186] 2014[193] 2005[186] 1981[186] 2016[186]
 Western Australia 1990[186] 2008[186] 2002[4] 2002[194] / (ART and IVF legal,
Surrogacy illegal)

See also

Wikimedia Commons has media related to LGBT in Australia.

LGBT rights in Australian states and territories:

References

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    The plight of gay asylum seekers sent from Australia to PNG's Manus Island has been highlighted by the Human Rights Law Centre and Human Rights Watch, which report that gay asylum seekers are subjected to abuse - including sexual abuse - in the detention facility on the island. It is understood that a number of gay asylum seekers sent to Papua New Guinea are considering changing their refugee claims, from claims based on their sexual orientation to false claims based on some other Convention grounds such as religion or political opinion. There are also reportedly a number of asylum seekers who have chosen to return home despite the risks they face in their country of origin. Ultimately, there is concern that asylum claims based on sexual orientation may not even be recognised by some decision-makers in Papua New Guinea.     line feed character in |quote= at position 289 (help)
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