LGBT rights in Western Australia

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Western Australia locator-MJC.png
StatusAlways legal for women; legal for men since 1990
Equal age of consent since 2002
Gender identityChange of sex marker on birth certificate does not require sex reassignment surgery
Discrimination protectionsYes, under state law since 2002 and federal law since 2013
Family rights
Recognition of relationshipsSame-sex marriage since 2017
De facto unions since 2002 (no civil unions or relationship register)
AdoptionYes, since 2002 (a ban on altruistic surrogacy for gay couples remains; bill pending to remove ban)

Lesbian, gay, bisexual and transgender (LGBT) rights in Western Australia have seen significant progress since the beginning of the 21st century, with the Parliament of Western Australia passing comprehensive law reforms in 2002. The Australian state decriminalised male homosexual acts in 1990 and was the first to grant full adoption rights to LGBT couples in 2002. However, the Surrogacy Act 2008 bans single people and same-sex couples from altruistic surrogacy agreements, making Western Australia the only jurisdiction within Australia to maintain such a prohibition.

Laws regarding sexual activity[edit]

In December 1989, the Parliament of Western Australia passed the Law Reform (Decriminalisation of Sodomy) Act 1989 which decriminalised private sexual acts between two people of the same sex and went into effect in March 1990.[1] The Act was however, one of the strictest gay law reform acts in Australia, as it made the age of consent for homosexual sex acts between males 21, whilst lowering the heterosexual age of consent to 16. The Act also created new homosexual-oriented offences under state law, including making it a crime for a person to "...promote or encourage homosexual behaviour as part of the teaching in any primary or secondary educational institutions..." or make public policy with respect to the undefined promotion of homosexual behaviour.[2]

LGBT people in Western Australia achieved equalisation of consent ages in 2002 via the Acts Amendment (Gay and Lesbian Law Reform) Act 2002, which also repealed the laws with respect to promotion of homosexual behaviour in public policy and in educational institutions.[3]

Historical convictions expungement[edit]

Western Australia was one of the last Australian jurisdictions to pass a law allowing individuals to apply to have historical homosexual convictions or charges expunged from their criminal records.

Following homosexual decriminalisation in 1990, attempts to reform the law only gained traction in the mid 2010's. In April 2016, the Law Society of Western Australia submitted a detailed proposal to the state Attorney-General, recommending a scheme be implemented to allow individuals who have been convicted of an historical homosexual offence apply to have that conviction be expunged.[4] Prior to the 2017 state election, both major parties in Western Australia discussed the prospect of expunging consensual homosexual sex crimes, with the opposition Labor Party pledging to implement such a scheme if elected and the incumbent Coalition Government stating it would consider the proposal.[5][6] After comfortably winning the election, the McGowan Labor Government introduced expungement legislation (the Historical Homosexual Convictions Expungement Bill 2017) to the Legislative Assembly on 1 November 2017.[7][8] The legislation requires those applying for an expunged record to satisfy a mandatory test to ensure their conduct constituted a historical homosexual offence. The consent of all parties and respective ages at the time is taken into account and family members of deceased victims are able to apply for an expungement on their behalf.[9][10] Labor leader and Premier, Mark McGowan, also issued a formal apology in Parliament to the LGBTIQ community in Western Australia for the anti-homosexuality laws of the past.[7][9] The bill passed the Assembly on 22 February 2018 and passed the Legislative Council with amendments attached later that year on 23 August.[8] The Legislative Assembly approved of the Council’s amendments on 11 September 2018 and the bill received royal assent on 18 September 2018.[8][11] The law went into effect on 15 October 2018.[12][13]

Expungement or spent conviction schemes are legally available within all other Australian jurisdictions.

Transgender rights[edit]

Western Australian law recognises a transgender person's change of sex. Prior to 2012 the state required the person to undergo sterilisation before approving a change in sex classification. This requirement was overturned when the High Court of Australia 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 gender recognition certificate.[14] In August 2018, the government introduced legislation to the Parliament of Western Australia that repealed the requirement that one must be "unmarried" for a change of sex to registered on one’s birth certificate.[15] The bill passed the lower house on 20 November 2018 and passed the upper house on 12 February 2019.[15] The bill received royal assent on 19 February 2019 and commenced on 19 March 2019.[16]

Intersex rights[edit]

In March 2017, representatives of Androgen Insensitivity Syndrome Support Group Australia and Organisation Intersex International Australia participated in an Australian and Aotearoa/New Zealand consensus "Darlington Statement" by intersex community organizations and others.[17] The statement calls for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support.[17][18][19][20][21]

Recognition of same-sex relationships[edit]

De facto unions are recognised in Western Australia. The Parliament passed a motion calling on the federal government to have a conscience vote on a same-sex marriage bill in September 2015.[22][23] During the 2017 state election, Labor Party leader Mark McGowan stated the party would consider legislating for civil unions if Labor formed government after the election.[24]

De facto unions[edit]

Western Australia is one of two jurisdictions in Australia (the other being the Northern Territory) not to offer relationship registries and official domestic partnership schemes to same-sex couples. Instead, state law provides same-sex couples with de facto unions, which have been recognised under Western Australian family law since 2002.[25] In order for a same-sex couple to be officially recognised as a de facto union, or for de facto same-sex couples to legally remedy divorce proceedings, the Family Court of Western Australia is charged with permitting that recognition or divorce. These state laws recognise same-sex couples rights to next of kin recognition, partner's state superannuation and compensation in the event of partner's death, amidst a whole host of other things.[26] Same-sex couples in Western Australia and their relationships are also covered by federal law,[27] ensuring that same-sex de facto partners are provided with same entitlements as married partners.[28]

Relationship declaration programs[edit]

Relationship declaration programs are available in two places within Western Australia, namely the City of Vincent[29] and the Town of Port Hedland.[30][31][32]

Same-sex marriage[edit]

Same-sex marriage became legal in Western Australia, and in the rest of Australia, in December 2017, after the Federal Parliament passed a law legalising same-sex marriage.[33]

Adoption and parenting rights[edit]

Same-sex couples are permitted to adopt in Western Australia[34] as a result of the Acts Amendment (Gay and Lesbian Law Reform) Act 2002[35] which in turn amended the Adoption Act 1994 to include same-sex couples as eligible to adopt a child and include provisions for same-sex step-parent adoptions.

Since April 2018, all Australian jurisdictions legally allow same-sex couples to adopt children.

The 2002 Act is extensive in that also amends several other Acts to enable same-sex couples have access to assisted reproductive technology including in-vitro fertilisation and artificial insemination (see Parts 4 and 11 of the Act).[35] The Act further stipulates (in Part 4, Section 26) that the de facto female partner of a pregnant woman conceived via assisted reproductive technology is automatically considered as the second legal parent of that child for the purpose of state law, once the birth has occurred. A same-sex couple who utilises artificial insemination or in-vitro fertilisation treatment together (i.e. both parties present as a couple throughout the treatment) are able to have both names on the birth certificate once the child is born.

With respect to surrogacy rights, Western Australia (like all jurisdictions in Australia) bans commercial surrogacy and is also the only state within Australia to ban altruistic surrogacy for singles and same-sex couples,[36] the Surrogacy Act 2008 defining eligible surrogacy clients as "...2 people of opposite sexes who are married or in a de facto relationship with each other".[37] The state government revealed that an independent review of the restriction, as well as other aspects of assisted reproduction legislation, would be undertaken in 2018.[38] In August 2018, a bill was introduced in the Parliament of Western Australia to allow altruistic surrogacy for male same-sex couples and single men.[39][40] The bill passed the Legislative Assembly on 9 October 2018.[39][41] The bill was considered by the Legislative Council over several sitting days in early 2019. In that time, conservative Liberal Party MLC Nick Goiran staged a marathon filibuster against the legislation. Goiran spoke continuously for over 20 hours of parliamentary time spread over several months, delaying further debate on the bill and saying he wished for other parliamentarians to consider a report on the issue released by the government the previous month.[42][43] Under the rules of the Council, the only way to stop Goiran would be to remove the bill from the daily business agenda.[43] On 10 April 2019, the Council agreed to Goiran's motion to refer the bill to parliament's Legislation Committee.[44][45] The committee issued its report in late June.[46]

Discrimination protections[edit]

Western Australia passed the state Equal Opportunity Act in 1984.[47] This legislation failed to include sexual orientation amongst a list of attributes designed to protect people from discrimination. This was rectified in 2002, when the Acts Amendment (Gay and Lesbian Law Reform) Act 2002 amended the 1984 Act to include sexual orientation, protecting LGB people in areas of employment, education, accommodation and the provision of goods, services and facilities, amongst a host of other aspects of public life.[48][49] These laws technically provide less protections for transgender Western Australians, who are classified in the Equal Opportunity Act and by the Equal Opportunity Commission of Western Australia as 'Gender History'; providing protections for those who have reassigned gender as certified under the Gender Reassignment Act 2000.[50] In October 2018, the McGowan Labor Government revealed it would submit the Equal Opportunity Act to a review of the state Law Reform Commission, the announcement coming after McGowan had said he was “personally uncomfortable” with religious schools discriminating against gay students and teachers.[51]

Federal law protects LGBT and intersex people in Western Australia in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[52]

Schools and LGBTI students[edit]

The Safe Schools anti-LGBTI bullying program was rolled out in schools across the country under a federal initiative to combat anti-LGBTI school bullying, which research suggested was prevalent across Australian schools.[53] However, in 2015 and 2016 the Safe Schools program faced criticism from social conservatives for allegedly indoctrinating children with "Marxist cultural relativism"[53] and age-inappropriate sexuality and gender concepts in schools,[54] while others criticised the Marxist political views of Roz Ward, a key figure in the program.[53][55][56][57]

After the federal Turnbull Government announced that it would not renew funding for the program when it ran out in mid-2017,[53] Western Australia's political parties proposed different approaches in the run-up to the 2017 election. The Liberal Party announced it would allow the program to lapse if retained government.[58] The Western Australian branch of the Australian Labor Party confirmed it would fully fund the program in Western Australia if it won office, while the Western Australian Greens support the continuation of the program.[58] The 2017 election resulted in victory for the Australian Labor Party led by Mark McGowan and the defeat of outspoken Safe Schools opponents Peter Abetz and Joe Francis, among others.[59][60][61] The election outcome was welcomed by LGBTI advocates, who also called on the incoming McGowan Government to encourage more Western Australian schools to adopt the program, which provides training resources for teachers.[59]

Politics[edit]

The Labor Party and Greens are generally supportive of LGBTI rights, while the Liberal Party has tended to be less so.[58] In contrast to the WA Liberals and their eastern National Party counterparts, the National Party of Western Australia is socially progressive and largely supports LGBTI rights, with former leader Brendon Grylls acknowledging the gay and lesbian community in his maiden speech and the WA National party conference passing a 2006 motion in favour of civil unions.[62][63]

In 2002, Attorney-General Jim McGinty of the Labor Party and Greens Western Australia Leader Giz Watson introduced a package of comprehensive LGBTI law reform, which included allowing same-sex adoption, parentage rights for lesbian couples with children, allowing same-sex couples to access the more cost-effective Family Court of Western Australia to resolve their disputes and equalising the age of consent at 16 years for both heterosexual and homosexual sex acts.[64] As a result Western Australia became the first Australian state to allow LGBT adoption[65] and the first place in Australia where a same-sex couple adopted a stranger's child, which occurred in 2007.[66]

The 2002 McGinty-Watson reforms were strongly opposed by the Western Australian Liberals at the time, who were then led in opposition by Colin Barnett.[64] In their 2002 policy "Family First – Defining the Difference", the Liberals promised to repeal the reforms and raise the homosexual age of consent from 16 to 18 years of age.[64] The Liberals did not form government until 2008, and did not change the LGBTI laws once in office.[64] Before their defeat at the 2017 state election a number of Liberal politicians, including Joe Francis and Peter Abetz, were outspoken in their opposition to LGBT rights such as same-sex marriage and anti-LGBT bullying programs.[60][61]

At the 2017 election, the incoming McGowan ALP Government promised it would continue funding for the Safe Schools anti-bullying program, introduce a conviction expungement scheme to clear historical offences for legalised sexual conduct and (in the then-absence of same-sex marriage under federal law) consider establishing civil unions under state law.[59]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1990 for men; always for women)
Equal age of consent Yes (since 2002)
Anti-discrimination state laws for sexual orientation Yes (since 2002)
Anti-discrimination state laws for gender identity or expression Yes/No (protection for "gender history" only; since 2002)
Right to change legal gender without sex reassignment surgery Yes (since 2012 by the High Court of Australia)
Hate crime laws include sexual orientation No
Hate crime laws include gender identity or expression No
Laws against LGBT vilification No
Gay sex criminal records expunged Yes (since 2018)
Gay panic defence abolished Yes
Recognition in state law of same-sex couples as de facto couples Yes (since 2002)
Step adoption by same-sex couples Yes (since 2002)
Joint adoption by same-sex couples Yes (since 2002)
Automatic IVF/artificial insemination parenthood for female partners Yes
Access to IVF for lesbians Yes
Access to altruistic surrogacy for male same-sex couples No (only such ban in Australia; bill pending to remove ban)[39]
Conversion therapy on minors outlawed No
Same-sex marriages Yes (since 2017)
MSMs allowed to donate blood Yes (one year deferral - Australia-wide)

See also[edit]

References[edit]

  1. ^ Gay Law Reform in Australian States and territories
  2. ^ Law Reform (Decriminalisation of Sodomy) Act 1989
  3. ^ Acts Amendment (Gay and Lesbian Law Reform) Act 2002 full text
  4. ^ "Law Reform Relating to Historical Homosexual Convictions" (PDF). Law Society of Western Australia. 26 April 2016.
  5. ^ "Labor vows to expunge WA homosexual criminal convictions". ABC News. 27 August 2016.
  6. ^ "Historical homosexual convictions: plan to expunge criminal records in WA". ABC News. 11 November 2016.
  7. ^ a b "WA Government issues apology to men convicted over homosexual acts". ABC News. 1 November 2017.
  8. ^ a b c "Legislative Tracker: Historical Homosexual Convictions Expungement Bill 2017". Parliament of Western Australia. 1 November 2017.
  9. ^ a b "WA Premier Mark McGowan to apologise in Parliament to those convicted of crimes based on sexuality". Perth Now. 30 October 2017.
  10. ^ "Explanatory Memorandum: Historical Homosexual Convictions Expungement Bill 2017" (PDF). Parliament of Western Australia. 1 November 2017.
  11. ^ "Historical Homosexual Convictions Expungement Act 2018" (PDF). legislation.wa.gov.au. 18 September 2018.
  12. ^ "Historical Homosexual Convictions Expungement Act 2018 Commencement Proclamation 2018" (PDF). legislation.wa.gov.au. 15 October 2018.
  13. ^ "Applying for Expungement under the Historical Homosexual Convictions Expungement Act 2018 (WA)".
  14. ^ Human Rights Commission, AB v Western Australia
  15. ^ a b "Legislative Tracker: Gender Reassignment Amendment Bill 2018". Parliament of Western Australia.
  16. ^ "Gender Reassignment Amendment Act 2019" (PDF). legislation.wa.gov.au.
  17. ^ a b Androgen Insensitivity Support Syndrome Support Group Australia; Intersex Trust Aotearoa New Zealand; Organisation Intersex International Australia; Black, Eve; Bond, Kylie; Briffa, Tony; Carpenter, Morgan; Cody, Candice; David, Alex; Driver, Betsy; Hannaford, Carolyn; Harlow, Eileen; Hart, Bonnie; Hart, Phoebe; Leckey, Delia; Lum, Steph; Mitchell, Mani Bruce; Nyhuis, Elise; O'Callaghan, Bronwyn; Perrin, Sandra; Smith, Cody; Williams, Trace; Yang, Imogen; Yovanovic, Georgie (March 2017), Darlington Statement, archived from the original on 21 March 2017, retrieved 21 March 2017
  18. ^ Copland, Simon (20 March 2017). "Intersex people have called for action. It's time to listen". Special Broadcasting Service. Retrieved 21 March 2017.
  19. ^ Jones, Jess (10 March 2017). "Intersex activists in Australia and New Zealand publish statement of priorities". Star Observer. Retrieved 21 March 2017.
  20. ^ Power, Shannon (13 March 2017). "Intersex advocates pull no punches in historic statement". Gay Star News. Retrieved 21 March 2017.
  21. ^ Sainty, Lane (13 March 2017). "These Groups Want Unnecessary Surgery On Intersex Infants To Be Made A Crime". BuzzFeed Australia. Retrieved 21 March 2017.
  22. ^ http://www.australianmarriageequality.org/2015/09/24/media-release-w-a-parliament-joins-n-s-w-in-supporting-marriage-equality-free-vote-premier-barnett-objects-to-plebiscite/
  23. ^ http://www.starobserver.com.au/news/local-news/other-states/western-australia/wa-parliament-becomes-second-state-to-officially-support-free-vote-on-marriage-equality-oppose-plebiscite/141253
  24. ^ "WA Labor may back same-sex civil unions". 9 News. 2 March 2017.
  25. ^ Legal Aid WA: same-sex relationships
  26. ^ Equality Rules WA Report Archived 7 September 2013 at the Wayback Machine
  27. ^ Same-sex law reform: Attorney-General of the Commonwealth of Australia Archived 23 May 2015 at the Wayback Machine
  28. ^ WA Laws: Australian Marriage Equality
  29. ^ "Archived copy". Archived from the original on 15 November 2015. Retrieved 7 November 2015. Cite uses deprecated parameter |deadurl= (help)CS1 maint: archived copy as title (link)
  30. ^ http://www.abc.net.au/news/2015-08-27/same-sex-unions-port-hedland-create-relationship-register/6728408
  31. ^ http://www.vincent.wa.gov.au/Home
  32. ^ http://www.porthedland.wa.gov.au/
  33. ^ "Same-sex marriage bill passes House of Representatives, paving way for first gay weddings". ABC News. 7 December 2017.
  34. ^ WA Department of Child Protection: Adoption
  35. ^ a b Acts Amendment (Gay and Lesbian Law Reform) Act 2002
  36. ^ Two dads and a surrogate create legal landmark
  37. ^ Surrogacy Act 2008 see division 3 part 2
  38. ^ "WA law changes could pave way for same-sex couples to use surrogates". Perth Now. 13 January 2018.
  39. ^ a b c "Legislative Tracker: Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018". Parliament of Western Australia.
  40. ^ "Western Australian Government Moves To Allow Gay Men Access To Surrogacy". Q News. 26 August 2018.
  41. ^ "Bill to allow surrogacy for gay couples and single men progresses". Out in Perth. 9 October 2018.
  42. ^ "Nick Goiran delivers 'huge' Parliament filibuster on surrogacy laws lasting 12 hours and running". ABC News. 4 April 2019.
  43. ^ a b "Liberal MP Nick Goiran's endless speech 'costing $30K a day'". The West Australian. 10 April 2019.
  44. ^ "WA Liberal MP Nick Goiran succeeds in surrogacy bill filibuster after a nearly 24-hour speech". ABC News. 10 April 2019.
  45. ^ "Surrogacy debate adjourns with legislation sent to committee". Out in Perth. 10 April 2019.
  46. ^ "Report: Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018" (PDF). Standing Committee on Legislation. Parliament of Western Australia. 27 June 2019.
  47. ^ "EQUAL OPPORTUNITY ACT 1984". Austlii.edu.au. Retrieved 20 January 2011.
  48. ^ Discrimination Laws: Legal Aid Western Australia
  49. ^ Gay Law Net: WA
  50. ^ Equal Opportunity Commission of Western Australia
  51. ^ "'Outdated' equal opportunity laws to be reviewed by WA government". Perth Now. 11 October 2018.
  52. ^ Australian Human Rights Commission
  53. ^ a b c d Alcorn, Gay (13 December 2016). "The reality of Safe Schools". The Guardian. Retrieved 17 December 2016. The initiative began after La Trobe University research in 2010 found that 61% of same sex-attracted young people (aged 14 to 21) had experienced verbal abuse and 18% physical abuse; 80% of the abuse happened at school.
  54. ^ "Christian lobby groups claim 'radical sexual experimentation' is being promoted in schools". news.com.au. News Limited. 25 July 2015. Retrieved 12 September 2016.
  55. ^ Cavanagh, Rebekah (2 June 2016). "Roz Ward suspended from controversial Safe Schools program". Herald Sun. Retrieved 21 September 2016.
  56. ^ Brown, Greg (31 May 2016). "Jeff Kennett: Safe Schools funding lost if Roz Ward stays". The Australian. Retrieved 7 September 2016.
  57. ^ Ryall, Jenni (27 February 2016). "Safe Schools: Everything you need to know about the controversial LGBT program". Mashable. Retrieved 10 December 2016.
  58. ^ a b c Hill, Leigh (9 March 2017). "OUTinPerth LGBTIQ Election Forum: What did we learn?". OUTinPerth - Gay and Lesbian News and Culture. Retrieved 14 March 2017.
  59. ^ a b c Hill, Leigh (13 March 2017). "West Australian LGBTI advocates welcome election results". OUTinPerth – Gay and Lesbian News and Culture. Retrieved 14 March 2017.
  60. ^ a b "Peter Abetz concedes he's lost his seat of Southern River". OUTinPerth – Gay and Lesbian News and Culture. 11 March 2017. Retrieved 15 March 2017.
  61. ^ a b "Joe Francis won't be the new Liberal leader after he loses his seat". OUTinPerth – Gay and Lesbian News and Culture. 14 March 2017. Retrieved 15 March 2017.
  62. ^ "Queer times in the West as poll approaches". Crikey. 14 December 2004. Retrieved 14 March 2017.
  63. ^ Maguire, Emily (14 October 2006). "A new breeze in the bush on gay rights". Sydney Morning Herald. Fairfax Media. Retrieved 14 March 2017.
  64. ^ a b c d "Facing up to an election catastrophe Colin Barnett says 'I gave it my best shot'". OUTInPerth – Gay and Lesbian News and Culture. 11 March 2017. Retrieved 14 March 2017.
  65. ^ "Queensland moves to allow gay couples to adopt". OUTInPerth. 6 August 2016. Retrieved 13 April 2017.
  66. ^ Hayward, Andrea; Perpitch, Nicolas (14 June 2007). "Gay adoption divides community". News Corp Australia. Retrieved 13 April 2017.

External links[edit]