Lesbian, gay, bisexual and transgender (LGBT) rights in Australia have advanced since the late 20th century to the point where LGBT people in Australia are protected from discrimination and enjoy the same rights and responsibilities as others.
Australia is a federation, with most laws affecting LGBT and intersex rights made by its states and territories. Between 1975 and 1997, Australian states and territories progressively repealed anti-homosexuality laws that had been inherited from the British Empire. Since 2016, each jurisdiction has an equal age of consent for all sexual acts. Most jurisdictions now offer expungement schemes to clear the criminal records of people charged or convicted for consensual sexual acts that are no longer illegal.
The country legalised same-sex marriage on 9 December 2017. States and territories began granting domestic partnership benefits and relationship recognition to same-sex couples from 2003 onwards, with federal law recognising same-sex couples since 2009 as de facto relationships. Alongside marriage, same-sex relationships may be recognised by states or territories in various ways, including through civil unions, domestic partnerships, registered relationships and/or as unregistered de facto relationships.
All jurisdictions apart from the Northern Territory allow both joint and stepchild same-sex adoption. Discrimination on the basis of sexual orientation and gender identity or expression is prohibited in every state and territory, with concurrent federal protections for sexual orientation, gender identity and intersex status since 1 August 2013.
Transgender rights in Australia include amending a person's legal sex on official records such as birth certificates, although most jurisdictions require sex reassignment surgery to be undertaken first. Australians outside the gender binary can legally register a "non-specific" sex on their federal legal documents and in the records of some states and territories. However, intersex rights in Australia are not fully protected, with many intersex Australians facing coercive medical interventions in childhood.
Australia is recognised as one of the most gay-friendly countries in the world, with opinion polls and the Australian Marriage Law Postal Survey indicating widespread popular support for same-sex marriage. 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. 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.
Video LGBT rights in Australia
Terminology
The term LGBTI is increasingly used in Australia, rather than just 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. Also used are the more-inclusive terms LGBTQI and LGBTQIA, with the A including asexual people.
Maps LGBT rights in Australia
Laws regarding sexual activity
Historical persecution
As part of the British Empire, Australian colonies inherited anti-homosexuality laws such as the Buggery Act of 1533. These provisions were maintained in criminal sodomy laws passed by 19th century colonial parliaments, and subsequently by state parliaments after Federation. 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, with Victoria the last to reduce the penalty in 1949. Community debate about decriminalising homosexual activity began in the 1960s, with the first lobby groups Daughters of Bilitis, Homosexual Law Reform Society and the Campaign Against Moral Persecution formed in 1969 and 1970.
Decriminalisation
Over a 22-year span between 1975 and 1997, Australian states and territories gradually repealed their sodomy laws as support for gay law reform grew.
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. Victoria followed on 23 December 1980, although a "soliciting for immoral purposes" provision added by conservatives saw police harassment continue in that state for several years. The next jurisdictions 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). In exchange for decriminalisation, Western Australian conservatives required a higher age of consent and an anti-proselytising provision similar to the United Kingdom's section 28.
Queensland legalised male same-sex activity with effect from 19 January 1991 following a change of government. 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 Keating Government to pass the Human Rights (Sexual Conduct) Act 1994, which legalised sexual activity between consenting adults throughout Australia and prohibited laws that arbitrarily interfered 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 anti-gay law as inconsistent with federal law. The Tasmanian Government decriminalised homosexuality on 1 May 1997 after failing to have the matter thrown out, becoming the final Australian jursidiction to do so.
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. The age of consent was equalised in 2002 by Western Australia and in 2003 by New South Wales and the Northern Territory. 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.
Historical conviction expungement
Soon six of the eight Australian jurisdictions will allow men charged or convicted under historical anti-homosexuality laws to apply for expungement, which clears the charge or conviction from their criminal record. After expungement, the conviction is treated as having never occurred, with the individual not required to disclose it and the conviction not showing up on a police records check. Without expungement laws, 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.
The dates when these laws took effect were as follows:
- South Australia -- 5 May 2013;
- New South Wales -- 24 November 2014;
- Victoria -- 1 September 2015;
- Australian Capital Territory -- 7 November 2015;
- Tasmania -- Expungement law received royal assent on 21 November 2017, will go into effect on 9 April 2018;
- Queensland -- Legislation received royal assent on 23 October 2017, yet to go into effect on a date to be fixed by proclamation;
- Western Australia -- Legislation to establish an expungement scheme was introduced to the lower house of the Parliament of Western Australia on 1 November 2017; and
- Northern Territory -- The Northern Territory Government is yet to introduce a bill to Parliament. The Government says it is under review.
Recognition of same-sex relationships
Australian law allows the recognition of same-sex relationships in a multitude of forms, depending on the couple's wishes. Same-sex couples can marry, enter into a civil union or domestic partnership in most states and territories, or can simply live together in an unregistered de facto relationship. Couples who enter into a civil union or domestic partnership are recognised as being in a de facto relationship for the purpose of federal law. According to the 2016 Census, there were around 46,800 same-sex couples in Australia.
Federal de facto relationship recognition
Following the Australian Human Rights Commission's report Same-Sex: Same Entitlements and an audit of Commonwealth legislation, in 2009, the federal Rudd Government introduced several reforms designed to equalise treatment for same-sex couples and their families. The reforms took the form of two pieces of amending 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 85 other existing federal laws to equalise the treatment of same-sex couples, and any children raised by those couples, in a range of areas including taxation, superannuation, health, social security, aged care and child support, immigration, citizenship and veterans' affairs.
For instance, in 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, for the first time under Australian law, same-sex couples were 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 a mixed-sex couple. Generally speaking, a couple in a de facto relationship is treated equally to a married couple in legal proceedings, with a few small differences in family law disputes, including property settlements and entitlements to spousal maintenance. A partner in a de facto relationship may also be required to prove the existence of a relationship before a court in order to access benefits, a process which is automatic for married couples and consequently can have a discriminatory impact on same-sex couples, who cannot yet marry in Australia.
De facto relationships also have different time eligibility requirements than marriages under laws relating to Centrelink, migration, family law matters and assisted reproduction. The higher burden of proof for de facto relatioships relative to marriages can impact on a person's ability to arrange their partner's funeral, and the rights of a de facto partner may be poorly understood by government departments.
From 1 July 2009, amendments to the Social Security Act 1991 meant that customers in a same-sex de facto relationship are recognised as partners 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.
Inheritance and property rights
Before same-sex marriage provided the automatic legal protections that married couples received under the law with regard to inheriting assets from their partners, same-sex couples had to take specific legal actions. Individuals were not entitled to a partial pension after their same-sex partner's death. Gay and de facto couples who separated also 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 stemmed from the 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.
Same-sex marriage
The Marriage Act 1961 defines marriage as the union of "2 people". The Act was amended in 2004 by the Howard Government to recognise only marriages between a man and a woman. Many subsequent attempts to legalise same-sex marriage nationwide failed in the Australian Parliament. The current Turnbull Government put legislation to the parliament establishing a plebiscite on same-sex marriage, to be held in February 2017, though this was rejected by the Australian Senate. The opposition Labor Party supports same-sex marriage in its party platform, though allows its parliamentary members a conscience vote 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.
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. Before the legalisation of same-sex marriage in December 2017, same-sex couples who married overseas were prevented from divorcing in Australia.
The Australian Marriage Law Postal Survey returned a 61.6% "Yes" response in favour of same-sex marriage. A bill to legalise same-sex marriage was introduced into the Parliament shortly after the results were announced. The bill, titled the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, passed the Senate by 43 votes to 12 on 29 November 2017, and passed the House of Representatives on 7 December 2017. The bill received royal assent on 8 December 2017 and went into effect the following day. Same-sex marriages lawfully entered into overseas automatically became recognised and the first marriages under the amended law were to occur on 9 January 2018. However, several couples successfully applied for an exemption from the normal one-month waiting period, and the first legal same-sex weddings under Australian law were held on 16 December 2017.
State and territory recognition
Aside from Western Australia and the Northern Territory, all other states and territories in Australia have their own state-based civil union or domestic partnership laws. Otherwise, cohabiting same-sex couples may be recognised as de facto couples for the purposes of state or territory law.
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, Victoria and South Australia, same-sex couples can enter into domestic registered partnerships/relationships. 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. Victoria and Tasmania's domestic partnership laws also allow any couple the option of having an official ceremony when registering their relationship. South Australia's law allowing registered relationships and recognised overseas and interstate same-sex unions went into effect on 1 August 2017. 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, has been incorporated into NSW legislation, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016.
Prior to the federal legalisation of same-sex marriage, six Australian jurisdictions (Tasmania, Australian Capital Territory, New South Wales, Queensland, Victoria and South Australia), comprising 90% of Australia's population, recognised same-sex marriages and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.
+ Including Norfolk Island, where NSW laws apply
Discrimination protections
Federal law 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.
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 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. This approach was abandoned and instead on 25 June 2013, the Federal Parliament added marital or relationship status, sexual orientation, gender identity and intersex status as protected attributes to the existing Sex Discrimination Act by passing 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 in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. No religious exemptions exist on the basis of intersex status.
State and territory law protections
Each of the states and territories introduced their own anti-discrimination laws to protect LGBTI people from discrimination before the Commonwealth did so in 2013. The first anti-discrimination protections were enacted in New South Wales by the Wran Government in 1982, two years before the decriminalisation of homosexuality in that state.
Gay panic defence abolition
Historically Australian courts applied the provocation doctrine to allow the use of the "homosexual advance defence", more commonly known as the "gay panic defence". This meant that for violent crimes such as murder, a male killer could argue that an unwanted homosexual advance from another man provoked him to lose control and respond violently, which could lead to his criminal responsibility being downgraded from murder to manslaughter and therefore a reduced penalty.
The first recorded use of the defence in Australia was the 1992 Victorian case of R v Murley, in which a man was acquitted of murder after killing a gay man who had allegedly made a sexual advance towards him. The defence was recognised nationwide by a majority of the High Court of Australia in the 1997 case of Green v the Queen. This led to calls for the defence to be abolished by legislation.
Several states and territories subsequently abolished the defence of provocation altogether, including Tasmania, New South Wales, Western Australia and Victoria. The Australian Capital Territory and the Northern Territory took a more targeted approach to reform, specifically abolishing the availability of non-violent homosexual advances as a defence. Queensland took a similar approach in 2017 by removing the "unwanted sexual advance" from the defence of provocation, while allowing courts to consider circumstances of an "exceptional character".
South Australia is the only state to retain the gay panic defence; however, it is currently under review.
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. Initially established in Victorian schools in 2010, the program was launched nationwide in 2014 under the Abbott Government. The program has received support from a majority of state governments, LGBTI support groups and other religious and non-governmental organisations such as beyondblue, headspace and the Australian Secondary Principals Association.
However, the program faced criticism in 2015 and 2016 from social conservatives including the Australian Christian Lobby, LNP politicians such as Cory Bernardi, George Christensen, Eric Abetz, Malcolm Turnbull, Tony Abbott, Kevin Andrews and former Labor Senator Joe Bullock for indoctrinating children with "Marxist cultural relativism" and age-inappropriate sexuality and gender concepts in schools, while others criticised the Marxist political views of Roz Ward, a key figure in the program. Petitions were also delivered against the program by members of Australia's Chinese and Indian communities.
The concerns led to a review under the Turnbull Government, which implemented a number of changes such as restricting the program to high schools, removing role playing activities and requiring parental consent before students take part. The federal changes were rejected by the governments of Victoria and the Australian Capital Territory, who persisted with the original program and announced they would fund it independently of the Federal Government. The federal changes were supported in New South Wales, Western Australia and Tasmania, while Queensland and South Australia have voiced criticism without announcing whether they would implement the federal changes. As of December 2016 no Northern Territory school participates in the program. In December 2016, the Federal Government confirmed that it would not renew funding for the program after it expired in mid-2017. The program operates extensively in Victoria and is fully funded by the State Government. State governments are also fully responsible for directly funded programs in South Australia and the Australian Capital Territory. Several schools in Western Australia, Queensland, Tasmania and the Northern Territory remain signed up to the national Safe Schools registry.
Adoption and parenting rights
States and territories make laws with respect to adoption and child-rearing. Since February 2017, same-sex couples can adopt children in nearly all jurisdictions within Australia. The Northern Territory is the only jurisdiction to exclude same-sex couples from adoption. The 2011 Australian census counted 6,300 children living in same-sex couple families, up from 3,400 in 2001, make up one in a thousand of all children in couple families (0.1%). Altruistic surrogacy is legal within all Australian jurisdictions - except Western Australia (where it is legal for heterosexual couples but illegal for singles and same-sex couples). Commercial surrogacy is banned nationwide. The Northern Territory has no laws on surrogacy at all. 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. Assisted reproductive technology/treatment (ART) is accessible to same-sex couples in all states and territories, with South Australia being the final jurisdiction to pass such a law, in March 2017. Female same-sex partners of mothers are usually considered the automatic co-parent of the child(ren) born as a result of assisted reproduction.
Transgender rights
Birth certificates by state
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.
Gender recognition
Birth certificates and driver licences are within the jurisdiction of the states, whereas Medicare 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. Sex and gender recognition for federal purposes such as Medicare and passports require only a letter. By contrast, most states and territories impose additional requirements for gender recognition that have been criticised by the Australian Human Rights Commission and LGBT advocates. In most states and territories, the person must undergo sex reassignment surgery. The requirement to divorce if one was married was removed as a result of the legalisation of same-sex marriage in 2017. Advocates argue that marital status and surgery requirements are irrelevant to the recognition of a person's sex or gender identity, and instead should rely on their self-identification.
The Australian Capital Territory and South Australia are the only two Australian jurisdictions to have amended their laws to allow a person to change the sex recorded on their birth certificate without a requirement to undergo sex reassignment surgery or divorce if already married.
Gender dysphoria treatment
Medical treatment for gender dysphoria in pubescent children is generally divided into two stages:
- Stage 1 treatment involves the use of puberty blockers, which are reversible and can be accessed by children who have reached stages 2 or 3 of pubertal development on the Tanner Scale - this may occur as early as 10 years old;
- Stage 2 treatment involves administering cross-sex hormone therapy such as testosterone or oestrogen. This has irreversible effects (such as a deepened voice following female-to-male hormone replacement therapy or breast growth after male-to-female hormone replacement therapy). It is usually available once a person has reached 16 years of age.
Transgender Australians are generally not eligible for sex reassignment surgery until they turn 18 years old.
Medicare Australia provides cover for many of the major surgeries needed for SRS (sex reassignment surgery). However, there can often be a gap between the Medicare benefit paid and the amount the surgeon will charge, sometimes in the amount of thousands of dollars. However many Australian private health insurance policies provide private hospital cover policy that includes any SRS procedure that is also covered by Medicare. There is typically a waiting period before insurers allow people to claim for these services, usually about 12 months.
Transgender children required approval from the Family Court of Australia to access cross-sex hormone treatment (stage 2 treatment), though the court ruled in November 2017 that in cases where there is no dispute between a child, their parents, and their treating doctors, hormone treatment can be prescribed without court permission.
Intersex 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. 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 Organisation Intersex International Australia considers this inaccurate on the basis that "intersex" people are defined by their biological sex characteristics rather than their gender identities.
A key concern in intersex human rights is that, as infants, intersex people are often subjected to medical operations to "normalise" their genitalia and obscure their non-binary sex characteristics. 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. 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. The report makes 15 recommendations, including ending cosmetic genital surgeries on infants and children and providing for legal oversight of individual cases. The recommendations have not been implemented.
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 organisations and others. The statement calls for legal reform, including the criminalisation of deferrable intersex medical interventions on children, and improved access to peer support. It calls for an end to legal classification of sex and stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".
Immigration policy
Sponsorship of same-sex partners
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 prove a twelve-month committed relationship, but it can be waived if the couple is registered by a state or territory's Registry 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.
LGBT refugees
Australia is a party to the 1951 Refugee Convention, which obliges member states to offer protection to those seeking asylum due to a well-founded fear of persecution in their home countries due to, among other things, their membership of a particular social group. Australia first recognised "sexual preference" as a "social group" for the purposes of refugee protection in 1992 in Morato's Case. In 2003, a majority of the High Court of Australia held that Australia should not withhold asylum from gay refugees on the basis that they could protect themselves in their home countries by hiding their sexuality. The decision making process for assessing LGBT asylum claims lacks consistency and relies on stereotypes such as whether the person attended gay clubs or joined lesbian groups.
In 2013, Prime Minister Kevin Rudd introduced a new asylum policy which meant that all asylum seekers arriving by boat would be sent offshore to Manus Island in Papua New Guinea for processing and resettlement. This included gay refugees, even though they face persecution under Papua New Guinean law with homosexual acts criminalised and a potential penalty of 14 years imprisonment. Asylum seekers are warned in an orientation presentation on arrival by the Salvation Army that "Homosexuality is illegal in Papua New Guinea. People have been imprisoned or killed for performing homosexual acts." 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. Gay asylum seekers also face bullying, assault and sexual abuse on Manus Island from others, including officials and other refugees, due to their sexuality. Australia faces accusations from refugee advocates that it has violated its non-refoulement obligations under international law by exposing LGBT asylum seekers to such dangers. After the Supreme Court of Papua New Guinea in 2016 ordered the closure of Manus Island immigration detention centre on the basis that it breached constitutional guarantees of liberty, the Australian Government confirmed the closure but not what would happen to the detainees.
In practice, the protections for refugees seeking asylum on the basis of sexual orientation are limited, depending largely on invasive personal questions and the whim of the immigration officials involved. In 2014, then-immigration minister Scott Morrison introduced further changes which made it even more difficult for LGBTI refugees to prove the merits of their claim for asylum, such as narrowing the scope of protections and implementing a fast-track mechanism that may make it more difficult to gather necessary evidence to support an asylum claim. Australia's strict policy of mandatory detention and offshore processing for unauthorised boat arrivals has been criticised by non-government organisations including the ILGA, Human Rights Watch and Amnesty International, with particularly severe consequences for LGBT asylum seekers. The 2016 ILGA report on state-sponsored homophobia also describes 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", which was illegal at the time. In May 2016, Nauru decriminalised homosexuality by removing "carnal knowledge against the order of nature" as a criminal offence.
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. 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%).
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 the Czech Republic (both 80%). 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.
Indigenous LGBTI community
Gender diverse and transgender indigenous Australians are often referred to as sistergirls and brotherboys. The level of acceptance varies with each community and its elders. 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 dual discrimination through both racism and homophobia/transphobia, and are 45 times more likely to commit suicide than the general population.
Military service
The Australian military prohibited "unnatural offences" or "conduct prejudicial to good order and discipline" from the Boer War, with the Army introducing a specific anti-homosexuality policy after World War II at the urging of the United States military. From 1974 to 1992, the Australian military services had consistent policies against LGB personnel, who could be subject to surveillance, interviews, secret searches and discharge from the military.
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. 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 had returned with a recommendation to remove the ban four votes to two, including the committee chairman Terry Aulich. 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. 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."
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. 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.
Defence Force policy was amended to allow transgender Australians to openly serve in 2010. The policy was updated following the advocacy of Bridget Clinch, who sought to transition from male to female while serving in the Australian Army.
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 donation
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". 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." The next national review of the policy will take place sometime in 2018.
Positions of religious faiths
Australian faith communities vary widely in their official positions towards LGBT rights, including the legalisation of same-sex marriage. Sometimes, the 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. Churches would not be forced to marry same-sex couples if it became legalised, but this does not change their stance on the matter. 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. 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, Australian Catholics were among the most supportive of LGBTI people and rights in Australia. Australia's peak Buddhist and Hindhu organisations have expressed support for LGBT rights such as same-sex marriage.
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. 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.
In 2017, over 500 religious leaders in Australia wrote an open letter to the Australian Government to support marriage for same-sex couples, saying, "As people of faith, we understand that marriage is based on the values of love and commitment and we support civil marriage equality, not despite, but because of our faith and values."
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. 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." Their successors Anthony Fisher and Glenn Davies continued to speak against LGBT rights, particularly in the context of opposing same-sex marriage. The Exclusive Brethren have also advertised against LGBT rights, such as in the lead up to the 2006 Tasmanian election. However, a number of moderate Anglican leaders have called for greater debate, noting that Australian Anglicans are divided with many supporting LGBT rights. Further, a Catholic priest called Father Paul Kelly has advocated since 2008 for the abolition of the gay panic defence in Queensland to protect LGBT people from violence. As a direct result of a petition set-up by him, the gay panic defence was removed from Queensland law on 21 March 2017.
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. Other LGBT-affirming Christian organisations include Metropolitan Community Church, Acceptance for LGBT Roman Catholics and Freedom2b for Christians generally.
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. Anglican dean of Brisbane Peter Catt states that same-sex marriage is needed for "human flourishing and good order in society". Baptist minister Carolyn Francis asserted that churches needed to remain relevant and welcoming, including support for LGBTI rights and same-sex marriage.
Buddhism
Buddhist support for LGBT rights such as same-sex marriage was confirmed in 2012 by the Federation of Australian Buddhist Councils, which represents Buddhist laypeople, and the Australian Sangha Association, which represents religious leaders. 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.
Judaism
The Progressive Jewish community in Australia broadly supports LGBT rights, whereas the Orthodox branches remain opposed. Rabbi Shimon Cohen drew criticism for comparing homosexuality to incest and bestiality, and stating his support for gay conversion therapy. In 2007, the Council of Progressive Rabbis of Australia, New Zealand and Asia overturned their ban on same-sex commitment ceremonies. The North Shore Temple Emmanuel in Sydney began offering same-sex commitment ceremonies from 2008. In 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.
Islam
The Australian Federation of Islamic Councils, a peak umbrella body for Sunni 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. The Sunni Grand Mufti of Australia since 2011, Ibrahim Abu Mohamed, has maintained that Islam opposes what he has termed "sexual perversions" as a "religious fact". One imam sitting on the Sunni Australian National Imams Council described homosexuality as an "evil act" that spread diseases while another stated that death is the Islamic penalty for homosexuality.
Nur Warsame is a gay imam in Melbourne who seeks to help LGBT Muslims reconcile their faith with their sexuality. In 2018 Warsame announced his intention to open an LGBTI-friendly mosque in Melbourne.
An Australian branch of the LGBT-friendly Muslims for Progressive Values was established in Australia by Professor Saher Amer from the University of Sydney and Reem Sweid from Deakin University who claim Australia is home "to some of the most conservative Muslims in the western world". Other Australian Muslims including Osamah Sami and Muslims Against Homophobia Australia founder Alice Aslan have noted the need to address deep-seated 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.
Politics
Australian political parties are polarised on LGBT rights issues, with stronger support from centre-left parties such as the Australian Greens and the Australian Labor Party, as well as among moderate members of the centre-right Liberal Party. At state and territory level, most LGBTI law reform has been undertaken by Australian Labor Party governments. The number of openly LGBTI politicians has been increasing since the election of the first openly gay federal politician, Greens leader Bob Brown, in 1996.
Coalition
The conservative Coalition has mixed views on LGBT rights, but its senior partner the Liberal Party of Australia has fielded an increasing number of LGBTI candidates in federal elections, including the first openly gay man elected to the House of Representatives, Trent Zimmerman. After the 2016 Australian federal election, he was joined by fellow gay Liberals Tim Wilson and Trevor Evans, with gay Senator Dean Smith representing Western Australia for the Liberals in the Senate. Each differs in their level of activism on LGBT issues, considering themselves members of the Liberal Party first and foremost.
During the Howard Government, the Coalition strongly opposed LGBT rights. John Howard considered himself "somewhere in middle" on the acceptance of homosexuality, refusing to support the Sydney Gay and Lesbian Mardi Gras and stating he would be "disappointed" if one of his sons were gay. Howard also stated that "homosexual liaisons" did not deserve recognition as marriages and opposed LGBT adoption. Howard was also accused by a former ComCar driver of plotting with fellow politician Bill Heffernan to force the resignation of openly gay High Court judge Michael Kirby by having Heffernan accuse Kirby of misconduct with underage male prostitutes, which proved to be baseless. Howard refused to apologise to Kirby and continued to support Heffernan. In 2004, the Howard Government introduced laws allowing same-sex partners to inherit their partner's superannuation. Later that year, the Government passed laws to prevent same-sex marriages being performed or recognised in Australia.
Following the loss of government in the 2007 Australian federal election, Howard was replaced as leader by Brendan Nelson, who flagged the Coalition's support for removing legal discrimination against same-sex couples in all areas except marriage, adoption and fertility services.
Under the Turnbull Government, conservative members have used issues such as the Safe Schools program and same-sex marriage as proxy issues against the party's progressive wing following the moderate Malcolm Turnbull's successful leadership challenge to the conservative Tony Abbott. Conservatives have prevailed over progressives in the party by denying a conscience vote in the Parliament on same-sex marriage and successfully advocating for changes and the removal of federal funding to the Safe Schools program.
Aside from Darren Chester and Nigel Scullion, the Liberals' junior coalition partner, the National Party of Australia, is more uniformly opposed to same-sex marriage.
Australian Labor Party
The Australian Labor Party's position has increasingly shifted in favour of pro-LGBTI policies, in part to counter the electoral rise of the Australian Greens. Despite support from the left faction, the party opposed same-sex marriage and civil unions in 2009, but by 2013 the Labor Right faction also supported same-sex marriage.
Australian Greens
The Australian Greens are strongly supportive of LGBTI rights, with their first federal leader Bob Brown being the first openly gay politician elected to the Federal Parliament. They have consistently supported same-sex marriage.
Summary table
Federal
Intersex rights
State/Territory
See also
- Human rights in Australia
- Category:LGBT rights activists from Australia
- Category:Intersex rights activists
- LGBT history in Australia
LGBT rights in Australian states and territories:
- LGBT rights in the Australian Capital Territory
- LGBT rights in New South Wales
- LGBT rights in the Northern Territory
- LGBT rights in Queensland
- LGBT rights in South Australia
- LGBT rights in Tasmania
- LGBT rights in Victoria
- LGBT rights in Western Australia
Notes
References
External links
- Reviews of Laws and Rights
- Australian Human Rights Commission - Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015
- Special Broadcasting Service - A definitive timeline of LGBT+ rights in Australia (Last updated 15 November 2017)
- 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
- Support services
- QLife - national LGBTI counselling and referral service
- 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 - 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. 93-97
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