LGBT rights in Victoria

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LGBT rights in Victoria
Victoria, Australia
Same-sex sexual activity legal? Legal since 1981
Gender identity/expression Yes (both state and federal law)
Discrimination protections Yes (both state and federal law)
Family rights
Recognition of
Domestic partnership registries since 2008
Adoption No (step parent adoptions allowed)

Lesbian, gay, bisexual and transgender (LGBT) people in the Australian state of Victoria have some of the same rights as heterosexual people, yet lack access joint adoption and other parenting as occurs in some Australian states. While Victoria was at the forefront of the gay rights movement in the 1960s and 1970s, it has never taken the lead in gay rights legislation. Gay sex between men was legalised in 1981.

Laws regarding homosexuality[edit]

Gay activism in Australia began in Victoria, particularly in Melbourne. The Melbourne-based Daughters of Bilitis (Australia), which was inspired by the American Daughters of Bilitis group, was Australia's first openly homosexual political organisation, although they were short lived. They were followed by the gay rights organisation Society Five, which formed in 1971.[1][2] Additional rights organisations followed, including the Homosexual Law Reform Coalition in 1975 and the Gay Teachers Group in the late 1970s,[3] both of which were also based in Melbourne.

The Victorian LGBT community was keenly monitoring events in South Australia surrounding the decriminalisation of homosexuality which took place between 1972 and 1975. In 1976, The Age reported that police had used entrapment to make mass arrests at Victoria's Black Rock Beach which angered the gay community and gave the issue wide public attention. Amidst the storm of protest and debate, widespread support for the decriminalisation of male homosexual acts surfaced within the political mainstream.[4][5]

It was not until December 1980 that a law was passed (72–7) to decriminalise homosexuality in Victoria.[6] This law went into effect in March 1981.[7] The age of consent for gay men was set at 18 in 1980 and was not equalised to 16 until 1991 via the Crimes (Sexual Offences) Act 1991.[1]

Historical conviction expungement[edit]

From July 1, 2015 Victorian men who have criminal records due to historical gay sex charges, will have their historical consensual gay male sexual activity convictions erased by legislation unanimously passed by Victorian Parliament and signed into law with Royal Assent 6 days later - called the Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014. Such men are able to apply to the Department of Justice to have their convictions expunged. Men who were convicted have had to deal with consequences, including restrictions on travel and applying for some jobs.[8] South Australia was the first jurisdiction within Australia to develop an expungement scheme, followed by New South Wales.[9][10]

Recognition of same-sex relationships[edit]

In August 2001, the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001 amended 60 Acts in Victoria to give same-sex couples, called domestic partners, some rights equal to those enjoyed by de facto couples, including hospital access, medical decision making, superannuation, inheritance rights, property tax, landlord/tenancy rights, mental health treatment, and victims of crime procedures.[11]

In March 2006, independent Victorian MP Andrew Olexander proposed a private member's bill to allow civil partnerships in the state, but the state government would not allow it to be drafted by the parliamentary counsel.[12]

The city of Melbourne provided a "Relationship Declaration Register" for all relationships and carers starting in April 2007. While the register does not confer legal rights in the way traditional marriage does, it may be used to demonstrate the existence of a de facto relationship in relation to the Property Laws Act 1958, the Administration and Probate Act 1958 and other legislation involving domestic partnerships.[13][14][15] The city of Yarra launched its Relationship Declaration Program the following month. Under the program two people may declare that they are partners and have this declaration recorded in the Yarra City Council Relationship Declaration Register.[16]

In December 2007, Victoria's parliament introduced the Relationships Bill 2007, to allow same-sex couples register their relationships state-wide with the Registrar of Births, Deaths and Marriages. This bill also amends 69 other pieces of legislation to include couples who are in registered relationships.[17] The Bill was passed by the Victorian Legislative Assembly, or lower house on 12 March 2008. All Labor MPs who were present voted in favour, 24 MPs voted against the bill, 54 voted for it.[18] The Legislative Council, or upper house, voted in favour of the bill without amendments on 10 April 2008. Approved and given Royal Assent by the Governor on 15 April, the relationships register came into operation by 1 December 2008.[19]

Adoption and parenting rights[edit]

In May 1988, Victoria became the first State in Australia in which a child was born by use of IVF surrogacy. In July 1988, sections 11, 12, and 13 of the Infertility (Medical Procedures) Act 1984 were commenced to prevent a repetition of IVF surrogacy in Victoria, by prohibiting the use of IVF technology on women who have not been diagnosed as infertile and rendering commercial and altruistic surrogacy arrangements void.[20] In addition, only women who were married were allowed to access IVF treatment. Then in 1997, women in de facto relationships with men were allowed access to IVF treatment under the Infertility Treatment (Amendment) Act 1997.[21]

On 28 July 2000, re McBain v State of Victoria, Justice Sundberg of the Federal Court of Australia concluded that the Victorian legislation infringed the prohibition on discrimination found in section 22 of the Sex Discrimination Act. This eliminated any marriage requirement, but did not clearly address the medical needs requirement. This legal decision has opened the door for lesbian couples to use IVF procedures.[22][23]

In June 2007, the Victorian Law Reform Commission released its final report recommending that the laws be modified to allow more people to use assisted reproductive technologies and to allow same-sex couples to adopt and be recognised as parents to their partner's children.[24] The proposed changes would also mean drastic reforms to surrogacy which, while technically legal, was practically impossible in Victoria: a woman would no longer have to be clinically infertile to be a surrogate mother. In addition, parents who have children through surrogacy would be able to go to the County Court and apply for a substitute parentage order for legal recognition.[25] Birth certificates could use the word parent instead of mother and father.[26]

Victoria is expected to adopt almost all of the 130 recommendations of the Victorian Law Reform Commission in legislation which was introduced to Parliament in September 2008.[27] This will make IVF legal for all women (except sex offenders), and gives parents of surrogate children, including female same-sex partners, greater parenting rights.[28] Altruistic surrogacy would become legal, while commercial surrogacy would remain illegal. The Government stopped short of allowing same-sex couples full adoption rights.[29] According to the draft bill, the surrogate mother will be presumed to be the mother of the child unless or until a substitute parentage order is made in favour of the commissioning parents.

The lower house voted 47–34 to support the contentious Assisted Reproductive Treatment Bill 2008, with all Coalition members voting against it.[30] After passing the upper house by just two votes, the bill was amended and had to go back for another vote in the lower house and then passed the lower house. The passed bill then got assented on 4 December 2008. The law became effective from 1 January 2010.[31]

Assisted Reproductive Treatment Bill 2008 Passed – Assented 4 December 2008

2014 Developments[edit]

In May 2014, the opposition Victorian Labor Party unanimously approved a change in the party's platform, in support of full adoption rights for same-sex couples raising children.[32] If approved by the Victorian Parliament, such a law change would also likely address related inequalities, such as the inability of a step-parent to adopt their partner's child, the inability of a gay couple to jointly adopt a child conceived through IVF, as well as assisting children living under permanent care orders, in step-parent families, in foster families, and children born through international surrogacy arrangements.[33]

After the November 2014 state election, Labor won control of the Parliament of Victoria and can now implement their agenda. Hours after being sworn in as part of the new Andrews Labor government, Equality Minister Martin Foley promised to waste no time amending the Victorian Adoption Act 1984 - in order bring Victoria into line with NSW, Western Australia, Tasmania and the ACT. At present, gay couples in Victoria can be appointed as foster parents or guardians, but do not have the right to adopt a child together – even if that child has been in their care for years. Mr Foley said Labor would also tackle other inequalities, including the inability of a step-parent to adopt their partner's child and the inability of a gay couple to jointly adopt a child conceived through IVF.

The Andrews Labor government has also vowed to:

  • Rewrite equal opportunity laws to make it harder for faith-based organisations, such as schools, to discriminate against certain employees because of their sexual orientation and religious beliefs.
  • Require every government secondary school to have programs to support gay students through a state wide rollout of the safe schools coalition initiative.
  • Amend the Relationships Register to ensure same-sex couples married in other countries can have their relationships recognised in Victoria.
  • Repeal section 19A of the Crimes Act to remove discrimination in the law for people with HIV.[34]

Discrimination protections[edit]

Since 2000, Victoria prohibits discrimination based on sexual orientation and gender identity under the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 – which amended the Equal Opportunity Act 1995.[35][36]

Since 2010, the Equal Opportunity Act 1995 has been repealed and replaced with the Equal Opportunity Act 2010[37] - that still includes both sexual orientation and gender identity.

Federal law also protects LGBT and Intersex people in Victoria in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[38]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1981 for males; always for females)
Equal age of consent Yes
Anti-discrimination state laws for sexual orientation Yes
Anti-discrimination state laws for gender identity or expression Yes
Hate crime laws include sexual orientation Yes
Hate crime laws include gender identity or expression Yes
Recognition in state law of same-sex couples as domestic partners Yes
Step adoption by same-sex couples Yes
Joint adoption by same-sex couples Yes
Access to IVF for lesbians Yes
Same-sex marriages No (federal jurisdiction)
MSMs allowed to donate blood No (one year deferral - Australia-wide)

See also[edit]


  1. ^ a b Gay law reform in Australian States and Territories: Victoria pp. 10-15
  2. ^ Kaplan, Gisela (1996). The Meagre Harvest: The Australian Women's Movement 1950s–1990s. St Leonards. p. 93. 
  3. ^ "Melbourne Gay Teachers and Students Group" "A gay bibliography – Melbourne Gay Teachers Group". 
  4. ^ "Melbourne Gay & Lesbian History series – Blackrock Beach Beat". Australian Lesbian & Gay Archives. Retrieved 2009-08-29. 
  5. ^ Roberts, Peter (19 September 1979). "State poised for gay law reform". The Age. Retrieved 2009-08-29. [dead link]
  6. ^ "Homosexual law reform in Australia". Australian Lesbian & Gay Archives. Retrieved 2009-08-29. 
  7. ^ Gay law reform in aus States and territories
  8. ^ Victorian men charged with gay sex crimes will have their convictions expunged (ABC News)
  9. ^ [1]
  10. ^ [2]
  11. ^ Same sex relationships, Victorian Equal Opportunity & Human Rights Commission
  12. ^ "Australian Lawmaker's Civil Unions Bill Appears Doomed (19 March 2006)". Archived from the original on 5 June 2008. Retrieved 2008-05-01. 
  13. ^ "Victoria's first Relationship Declaration Register launched, Monday, 2 April 2007". City of Melbourne. Retrieved 2007-09-03. 
  14. ^ "VicSame-sex register for Victoria". 24 April 2007. Retrieved 2007-09-03. [dead link]
  15. ^ "Victoria's first Relationship Declaration Register launched". City of Melbourne. Retrieved 2008-05-01. 
  16. ^ "First Couple to Sign Declaration for the Yarra Relationship Register". City of Yarra. 1 May 2007. Retrieved 2008-06-12. 
  17. ^ "Relationships Bill 2007". Archived from the original on 9 February 2008. Retrieved 2008-03-13. 
  18. ^ "Victoria's Next To Get Hitched". Retrieved 2008-03-13. 
  19. ^ "Vic relationships registry soon to be law (9 April 2008)". MCV. Retrieved 2008-05-01. 
  20. ^ "Lawlink NSW: 2. Current State of the Law". Lawlink NSW. Retrieved 2008-05-14. 
  21. ^ "Infertility Treatment (Amendment) Act 1997". Retrieved 2014-04-05. 
  22. ^ "McBain v State of Victoria: Access to IVF for all Women". Parliament of Australia. Retrieved 2008-05-14. 
  23. ^ "IVF decision brings charge of social experimentation". ABC News. 28 July 2000. Retrieved 2008-05-14. 
  24. ^ "Assisted Reproduction and Adoption, Final Report". Victorian Law Reform Commission. Archived from the original on 17 November 2007. Retrieved 2008-05-14. 
  25. ^ Nader, Carol (8 June 2007). "Gays, singles may get more IVF help". Melbourne: The Age. Retrieved 2008-05-14. 
  26. ^ Gardiner, Ashley; Whinnett, Ellen (8 June 2007). "Cabinet split looms on IVF". Herald Sun. Retrieved 2008-05-14. 
  27. ^ "Who's your mummy? (December 15, 2007)". Melbourne Community Voice. Retrieved 2008-05-15. 
  28. ^ "Victorian IVF win for Lesbians". Retrieved 2008-05-14. 
  29. ^ "Victoria catches up on surrogacy and IVF law". The Australian. 15 December 2007. Retrieved 2008-05-14. 
  30. ^ Best, Catherine (10 October 2008). "Lesbians celebrate fertility law victory". The Canberra Times. Retrieved 2008-10-10. 
  31. ^ "Non-birth parents can now be named on birth certificates". 2010-01-12. Retrieved 2014-04-05. 
  32. ^ Labor votes in favour of same sex adoption
  33. ^ Same sex adoption reform on the agenda
  34. ^ [3]
  35. ^ "Sexual orientation and lawful sexual activity". Victorian Equal Opportunity and Human Rights Commission. Retrieved 2007-09-03. 
  36. ^ "Equal Opportunity Act 1995". Austlii. Retrieved 2008-05-01. 
  37. ^ "EQUAL OPPORTUNITY ACT 2010 (NO. 16 OF 2010)". Retrieved 2014-04-05. 
  38. ^ Australian Human Rights Commission

External links[edit]