LGBT rights in Australia

Lesbian, gay, bisexual, transgender (LGBT) rights in Australia have gradually progressed since the late-20th century, to the point where anti-discrimination laws protect LGBT people in many areas of employment and service access, and same sex couples enjoy many of the same rights and benefits as non-same sex couples â€" with the notable exception of marriage.

The term LGBTI is now used in Australia, rather than LGBT, with the I denoting intersex people, born with atypical physical sex characteristics. Organisations that include intersex people as well as LGBT people include the National LGBTI Health Alliance and community media. Also used are the more-inclusive terms LGBTQI and LGBTQIA.

Australia is a federation of several states and territories, meaning many of its laws with respect to LGBT and intersex rights originate from a sub-jurisdictional level. States and territories began granting domestic partnership benefits and civil unions to same-sex couples from the mid 2000s and federal law recognises same-sex couples as de facto unions. Same-sex marriage has been proposed to the Commonwealth Parliament multiple times, but the parliament has rejected the bills on all occasions. Marriage, for federal law purposes, is defined as the union of a man and woman. The Australian Capital Territory legalisation of same-sex marriage was annulled by the High Court of Australia on the grounds that only the federal parliament has the constitutional and legal authority to legalise same-sex marriage. Same-sex adoption varies across each state and territory, with some allowing both joint and step adoption whilst others have not legislated same-sex adoption altogether. Discrimination protections on the basis of sexual orientation and gender identity or expression also vary in each state and territory, though federal protection laws have been in place since 1 August 2013. Transgender Australians may change their legal gender in all states and territories and are recognised as their desired gender whilst androgynous Australians are legally able to register their gender as 'non-specific' on personal legal documents related to sex.

Australia has been referred to by publications as one of the most gay friendly countries in the world, with recent polls indicating that a majority of Australians support same-sex marriage. A 2013 poll conducted by Pew Research indicated that 79% of Australians viewed that homosexuality should be accepted by society, making it the fifth most supportive country in the world behind Spain (88%), Germany (87%), Canada and Czech Republic (both 80%). 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.

Laws regarding homosexuality

During the British-colonial era in the 18th century, laws regarding same-sex sexual activity between men were influenced by British law and considered a capital crime, resulting in the execution of convicted sodomites. The death penalty for convicted sodomites was reduced to life imprisonment in 1899. During the mid to late-20th century, states and territories slowly began repealing their sodomy laws as awareness surrounding homosexuality began to flourish. Years of homosexual sex decriminalisation are as follows:

Australian Capital Territory: October 1973
South Australia: August 1975
Victoria: March 1981
Northern Territory: October 1983
New South Wales: June 1984
Western Australia: March 1990
Queensland: November 1990
Commonwealth of Australia: December 1994
Tasmania: May 1997

Age of consent

All states and territories of Australia (except for Queensland), have age of consent laws that 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. The age of consent in Queensland is 16 for vaginal and oral sex, however the age of consent to sodomy (i.e., anal sex) is 18 for everyone. This law dates to 1990, when sodomy was decriminalised for both heterosexuals and gay men. The penalty for such sex in Queensland is up to 14 years jail, and it is not a defence that a person believed that the other participant was over 18.

Historical conviction expungement

Three states in Australia (South Australia, Victoria and New South Wales) allow those convicted of historical consensual adult gay male same-sex sexual activity to apply for it to be expunged.

Legal issues regarding gender identity and intersex status

Legal recognition of person's affirmed gender

Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual after sexual reassignment surgery. However, the person's affirmed gender cannot be recognised if the person is married, as this would convert the marriage into a same-sex marriage, which is banned under current federal law. Some States require the sterilization of a transgender person in order to obtain legal recognition.

Identification documents

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.

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. Councillor Tony Briffa JP, of the City of Hobsons Bay, Victoria, previously acknowledged as the world's first openly intersex mayor, states on Tony's website that "my birth certificate is silent as to my sex".

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"

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. 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."

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. For example, New South Wales Registry of Births Deaths & Marriages requires that trans people must have "undergone a sex affirmation procedure" In 2014, the Australian Capital Territory also passed legislation that removed the surgery requirement for changing the sex marker on birth certificates.

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.

High Court ruling against sterilisation requirements for gender recognition

In 2012, AB v Western Australia, the High Court ruled that two transsexual men who had undergone mastectomies and hormone treatment did not need to undergo sterilisation to obtain a gender recognition certificate.

High Court ruling on "non-specific" gender

Norrie May-Welby is a Scottish-Australian who became the first transsexual 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.

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 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. 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.

Access to puberty blockers

In 2013, a twelve-year-old who identified as a female was granted access to reversible puberty blockers by a Family Court of Australia order. Justice Christine Dawe found that the "evidence is compelling and clearly indicates that the child is likely to suffer significant, detrimental, psychological and emotional effects" if the child could not use drugs that would prevent the onset of male puberty, such as a deepened voice and facial hair growth. The child had been diagnosed with gender identity disorder in 2008 and was acknowledged as a girl by her mother, step-father, extended family, teachers and doctors.

Medical treatment of intersex people

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. 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 â€˜normalisingâ€™ 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". The report makes 15 recommendations, including ending cosmetic genital surgeries on infants and children and providing for legal oversight of individual cases. 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."

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.

Recognition of same-sex relationships

Recognition of de facto relationships

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 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. 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 the following areas:
*Taxation
*Superannuation
*Health Insurance
*Social Security
*Aged care and child support
*Immigration
*Citizenship
*Veterans' Affairs

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. Consequently, a same-sex couple receives the same rate of social security and family assistance payments as an opposite-sex couple. 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. 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.

Relationship recognition in states and territories

Most states and territories in Australia have 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 ACT, domestic registered partnerships in New South Wales, Queensland, Tasmania and Victoria. This provides 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. In South Australia same-sex couples can prove their relationship through an agreement, known as the Domestic Partnership Agreement. In Western Australia, Norfolk Island and the Northern Territory, same-sex couples must often seek juridical approval to prove a de facto relationship exists.

A general note about state same-sex marriage bills:
In December 2013, the Australian Capital Territory's Same Sex Marriage legislation was declared unconstitutional by the High Court of Australia due to inconsistency with the federal Marriage Act 1961. This may mean that the state parliaments do not have the legal capacity to legislate for same-sex marriage even if they wanted to.

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. Recent attempts to legalise same-sex marriage nationwide have failed in the Australian Parliament. The current Abbott Government opposes same-sex marriage, though could potentially alter policy to support a conscience vote for Liberal/National party members when same-sex marriage legislation next comes before the Parliament. The opposition Australian Labor Party supports same-sex marriage in its party platform, though it allows its parliamentary members to exercise their consciences.

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.

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.

Immigration and sponsorship

In 1985, changes were made to the Migration Act 1958 (Cth) due to pressure from the Gay and Lesbian Immigration Task Force (GLITF). An interdependency visa was specifically created for same-sex couples, allowing Australian Citizens and Permanent Residents to sponsor their same-sex partners to Australia. Unlike married couples, de facto and interdependent partners must be able to prove a twelve-month committed relationship. The temporary and permanent visas (Subclasses 310 and 110) allow the applicant to live, work, study and receive Medicare benefits in Australia.

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.

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. Coalition amendments to the bill failed and it was passed in November 2008.

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 preference" is also rendered unlawful in the Fair Work Act 2009, allowing complaints to be made to the Fair Work Ombudsman.

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.

In late 2010, the Gillard Labor Government announced that it is undertaking a review of federal anti-discrimination laws, with the aim of introducing a single equality act that would include sexual orientation and gender identity. This was abandoned and instead the Gillard Labor Government introduced another bill - which is mentioned below.

On 25 June 2013, the Australian Federal Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 with overwhelming support in both houses and became law from Royal Assent three days later by the Governor-General. The amendment then became effective from 1 August 2013, making discrimination against lesbian, gay, bisexual, transgender, and intersex people illegal for the first time in the world at a national level. 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 in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. No religious exemptions exist on the basis of intersex status.

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

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 ACT, Western Australia and Tasmania, whilst Victoria, Queensland, the Northern Territory and South Australia bar same-sex couples from adopting jointly. 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%). Altruistic surrogacy is legal in all Australian states and territories except Western Australia and South Australia, 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. 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.

Social conditions

Military service

In 1992, the Australian Defence Force (ADF) ended its prohibition on openly gay or lesbian members serving in the military. 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. The ADF also gives equal access to superannuation and death benefits for same-sex partnerships. Under the Human Rights Commission Act 1986, 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.

The DEFGLIS (Defence Force Gay and Lesbian Information Service) is an unofficial organisation of Regular, Reserve and Civilian members of the Australian Defence Organisation (ADO) who are gay, lesbian, bisexual, intersex and transgender (GLBIT) and allies.

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. Four years later in May 2009, the tribunal dismissed the complaint saying that it was "unsubstantiated".

LGBT rights and religion in Australia

Religious groups who oppose LGBT rights

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.

Peter Jensen, former Archbishop of the Evangelical Anglican Diocese of Sydney, has vigorously opposed homosexuality, stating that accepting homosexuality is "calling holy what God called sin." Leaders of the Anglican Church of Australia have called for the removal of the proposed ACT Civil Union legislation, because they "believe this proposal actually threatens and compromises the traditional Christian view of marriage between a man and a woman."

Former Catholic Archbishop of Sydney Cardinal George Pell, the Catholic Church according to George Pell believes and teaches that sexual activity should be confined to married couples, a man and a woman, and opposes all extra-marital sexual activity. The Catholic Church will continue to oppose legitimizing any extra-marital sexual activity, including homosexual activity. It will also continue to oppose homosexual propaganda especially among young people he states.

The Australian Federation of Islamic Councils, considered Australia's most important Islamic organisation, came out strongly against removing discrimination against same-sex partners in federal law. Chairman Ikebal Patel said such moves would threaten the "holy relationship" of marriage between a man and woman/a man and several women and the core values of supporting families.

The Salt Shakers is a Christian Ethics Action Group based in Melbourne, Victoria. It includes people from a number of Christian denominations and provides resources to Christians and churches. They also operate in the public arena by consulting, lobbying and presenting a Christian perspective on issues affecting society. This includes sending press releases, giving interviews for current affairs and other programs, making submissions to government, monitoring TV standards. They believe homosexuality is a sin.

The Christian organization Exclusive Brethren ran full page advertisements in various newspapers to criticise Tasmanian Greens' pro-Gay policies such as same-sex marriage, LGBTgay adoption and fostering (something already partially recognized by Tasmanian law) in the lead up to the 2006 Tasmanian State Election.

Gender Matters is a coalition of seventeen groups and organisations formed in October 2008, including the Australian Family Association, the National Alliance for Christian Leaders, Exodus Global Alliance, the Fatherhood Foundation and Salt Shakers, promoting traditional gender roles. Some of their demands include: That marriage be "forever preserved as the voluntary exclusive union of one man and one woman"; That adoption be restricted to heterosexual couples; That IVF and other reproductive technologies are reserved exclusively for heterosexuals; And a ban on same-sex civil unions and registers.

Religious groups who support LGBT rights

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.

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. 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.

The Progressive Jewish community in Australia broadly supports LGBT rights, whereas the Orthodox branches are less accommodating, taking a staunchly conservative approach. On 5 June 2007 the Council of Progressive Rabbis of Australia, New Zealand, and Asia overturned their ban on same-gender commitment ceremonies. 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. This news was broadly publicised via a media release issued by Australian Marriage Equality on 25 May 2011.

Summary table

Federal

State/Territory

References

External links

History and Activism

Australian Lesbian and Gay Archives
Living Out Loud: A History of Gay and Lesbian Activism in Australia by Graham Willett, ISBN 1-86448-949-9, 2000.
Mapping Homophobia In Australia Study
Queen City of the South Melbourne Queer History radio series

Adoption and Parenting

Gay Dads Australia Surrogacy Guide
Same Sex Couple Adoption: The Situation in Canada and Australia Parliament of Australia
NSW Law Reform Commission Report, 1988 â€" Artificial Conception: In Vitro Fertilization
Same Sex Parenting by Paul Boers, Senior Associate of Dimocks Family Lawyers. FindLaw.com (April 2005)

Other

Marriage aside, what laws still discriminate against gays?
Australia National Laws
Federal and State Anti-Discrimination Law
Legal Recognition of Same-Sex Relationships Briefing Paper 9/2006 New South Wales Parliament
World conference on LGBT rights
Interdependency Visa: Offshore Temporary and Permanent (Subclasses 310 and 110)
Sinnes, G.R. Australia Encyclopaedia of Homosexuality. Dynes, Wayne R. (ed.), Garland Publishing, 1990. pp.Â 93â€"97

LGBT rights in Australia

Monday, May 11, 2015