LGBT rights in Queensland

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LGBT rights in Queensland
Queensland locator-MJC.png
Same-sex sexual activity legal? Always legal for women; legal since 1990 for men
Equal age of consent for all sexual acts since 2016
Gender identity/expression Change of sex requires person to divorce if married and to undergo sexual reassignment surgery
Discrimination protections Yes, since 2002 under state law and 2013 under federal law
Family rights
Recognition of
relationships
De facto relationships since 2002;
Civil partnerships offered between February–June 2012 and since April 2016[N 1]
Restrictions:
Same-sex marriage prohibited under federal law since 2004; see History of same-sex marriage in Australia
Adoption Yes, since 2016

The rights of lesbian, gay, bisexual, and transgender (LGBT) residents in the Australian state of Queensland have improved from the late 20th century onwards, similarly to LGBT rights in Australia more broadly. Private consensual sex between men has been legal in the state since 1990, while lesbian sexual acts were never criminalised.[2] Since 2016 Queensland's age of consent for all forms of sexual activity has been 16, after the age of consent for anal sex was lowered from 18 years.[3] Sexuality and gender identity are protected attributes under both Queensland and federal Australian anti-discrimination laws. Same-sex partners may be recognised as a de facto couple or may enter into a civil partnership under state law, but federal law restricts marriage to opposite-sex couples. Queensland law allows same-sex couples to become parents through adoption, foster care, altruistic surrogacy and, for lesbian couples, IVF. Transgender and intersex Queenslanders can also change their legally assigned gender on government records and obtain a new birth certificate reflecting this,[4] but activists have called for the abolition of the requirements that applicants undergo sexual reassignment surgery and divorce if married.[5]

As of 2016, Queensland is one of only two states in Australia (the other being South Australia) not to have abolished the homosexual advance defence (also known as the "gay panic defence") from its common law, although legislation has been introduced to Parliament.[6] The state has also proposed, but is yet to implement, a conviction expungement scheme for men convicted of consensual sexual acts that would be legal today.[7]

LGBT rights have been politically polarised - the Queensland branch of the Australian Labor Party supported the decriminalisation of homosexual sex and anti-discrimination protections as early as 1981 and have introduced various legal reforms when in power, while the socially conservative Liberal National Party of Queensland and its predecessor the National Party has traditionally been more hostile.[8] Queensland has historically been Australia's most conservative state, particularly in the decentralised regions to the north and west of the metropolitan south-east corner,[7] but the impact of social conservatism on Queensland politics and laws has gradually declined.[9] The highest proportion of Queensland same-sex couples are concentrated in Brisbane's inner-city suburbs, with the top three being New Farm, Fortitude Valley and Teneriffe.[10]

Laws regarding sexual activity[edit]

Initially inheriting the United Kingdom's anti-homosexuality laws, Queensland criminalised male sex acts for 95 years before legalising them in 1990, while lesbian activity was always legal.[2][11] Queensland's age of consent for all forms of sex is 16, since the age of consent for anal sex was lowered from 18 years to 16 years in 2016.[3] Queensland was the last Australian jurisdiction to equalise its age of consent.[3] A proposal to expunge the criminal records of men convicted of consensual homosexual acts is under active consideration.[12] The historical developments are considered further below.

Historical criminalisation and persecution[edit]

As with other former British colonies, Queensland originally derived its criminal law from the United Kingdom. This included the prohibition of "buggery" and "gross indecency" between males.[N 2] Similarly to the United Kingdom, lesbianism was never criminalised under Queensland law.[2] A review of Queensland homosexual convictions between 1860 and 1954 revealed that judges tended to hand down sentences that, while still harsh, were at the surprisingly lenient end of the range relative to the maximum.[13]

The release of the Wolfenden Report in the United Kingdom in 1957 marked the beginning of a change in official attitudes in the Anglosphere, with its recommendation that homosexuality be decriminalised.[14] Homosexual sex was legalised in England and Wales in 1967.[14]

While other states in Australia began to liberalise their anti-homosexuality laws in the 1970s and 1980s, Queensland was ruled by the socially conservative National Party of Joh Bjelke-Petersen.[2] His government refused to countenance changes to the law, describing gay people as "child molesters" and "perverts".[2] At this time government policy was uniformly hostile; the Education Department refused to hire the openly gay teaching graduate George Weir and in 1985 the government passed an amendment to the Liquor Act making it an offence for publicans to serve alcohol to "perverts, deviants, child molesters and drug users" or to allow them to remain on licensed premises.[2] The Bjelke-Petersen Government intended that the law allow publicans to refuse entry to homosexuals.[15] Although lesbianism was never criminalised directly, women could still be targeted by Bjelke-Petersen's "homosexual deviance" laws that allowed proprietors to call the police on patrons suspected of being lesbian.[16] The 1970s also saw the beginning of a local gay rights movement, with meetings held at the 379 Club on George Street and the local chapter of the Campaign Against Moral Persecution launched in 1971.[17]

Anti-homosexuality laws were enforced by police throughout the 1980s, including against men who were in same-sex relationships and were not aware that their private conduct was illegal.[2] National Party politicians of the time such as Queensland minister Geoff Muntz and federal leader Ian Sinclair made their anti-gay views well known, with the latter claiming that the Labor Party's failure to condemn homosexuality was helping the spread of the newly discovered HIV.[15]

Fear of HIV and AIDS were at their height in the 1980s, with at least 45 positive AIDS tests and six deaths in Queensland by 1985.[15] Then Health Minister at the time Brian Austin sought to relax some of the state morality laws, such as the ban on condom vending machines, but was overruled by the Cabinet.[15]

The first major public demonstration in favour of decriminalisation occurred on 31 August 1989, when several hundred people demonstrated outside Parliament House in Brisbane.[2][18] The protests arose after five men from Roma were charged with a variety of anti-homosexuality offences. At the time the maximum penalty for "sodomy" was seven years in jail.[18] Opinion polls published by The Bulletin during that era suggested that while a majority of Queenslanders did not support equal rights for gay people, they thought that private homosexual conduct between consenting adults should be decriminalised.[2] Before legalisation about 460 men were convicted under the laws, with police making arrests as late as 1989.[11]

Legalisation of male same-sex activity[edit]

The Fitzgerald Inquiry was commissioned in the late 1980s in Bjelke-Peteresen's temporary absence, following allegations of corruption and misconduct in the Queensland Police. The inquiry subsequently investigated the entire system of government. One of its recommendations was that a newly established Criminal Justice Commission review the laws governing voluntary sexual behaviour, including homosexual activity.[19]

This proposal was an issue in the 1989 state election. National Party leader Russell Cooper, whose party was heavily implicated in corruption by the Fitzgerald Inquiry, tried to galvanise socially conservative support using his party's opposition to the legalisation of homosexual conduct. During the election campaign he claimed that his party's corruption was a "secondary issue" to moral issues like abortion and homosexuality, adding that the then-Opposition ALP's policy of decriminalisation would send a "flood of gays crossing the border from the Southern states".[20] As a result Cooper was lampooned in Labor advertisements as a wild-eyed reactionary, a clone of Bjelke-Petersen and/or a puppet of Nationals party president Sir Robert Sparkes.[21] Cooper's party lost the election to Labor.

Following its victory, the new Government of Wayne Goss undertook the proposed review into the legality of homosexuality. That review recommended that homosexual offences be removed from the state's Criminal Code and that the age of consent for private consensual conduct be 16 years for both homosexual and heterosexual conduct.[22]

Goss' government largely implemented the changes in the Criminal Code and Another Act Amendment Act 1990, which was passed by the parliament on 28 November 1990.[2][23] Decriminalisation was strongly opposed by the National Party at the time, but they ultimately failed to prevent it.[15][24]

Age of consent equalisation[edit]

The initial decriminalisation of anal sex in Queensland in 1990 failed to implement an equal age of consent, despite it being a majority recommendation of the 1990 Parliamentary Criminal Justice Committee review of homosexuality. Queensland's age of consent remained at 16 for oral and vaginal sex. By comparison, the age of consent for anal sex was set at 18, with section 208 of the Queensland Criminal Code imposing up to 14 years imprisonment for "sodomy" that involved a person under that age, whether male or female.[25] When the government of Wayne Goss decriminalised male homosexual activity in Queensland, it imposed a higher age of consent for anal intercourse as a "pragmatic political response" to the objections of religious lobby groups, who largely equated homosexuality with anal sex.[26]

In 1996 the Borbidge National/Liberal Government changed the terminology in section 208 from "anal intercourse" to "sodomy" and doubled the applicable penalties. In October 2008 Labor's Attorney-General Kerry Shine raised the penalty for attempting under-18 sodomy to be the same as for committing the act.[27]

By 2016, Queensland was the last state or territory in Australia which lacked a equal age of consent for all sexual activity.[3] Successive state governments had ignored repeated calls for reform since the 1990s.[28][29][30]

Reform gained traction in August 2015, when the Palaszczuk government announced that it would consider a proposal to equalise age of consent laws relating to sexual intercourse.[31] On 16 June 2016, the Minister for Health and Ambulance Services, Cameron Dick, introduced to the parliament the Health and Other Legislation Amendment Bill 2016. Among other things, the legislation amended the state Criminal Code to standardise the age of consent for all forms of sexual intercourse to 16 years and replaced "anachronistic, value-laden" and stigmatising references to "sodomy" with the neutral term "anal intercourse".[30] The bill was reviewed by the Legal Affairs and Community Safety Committee, which tabled its report to parliament on 1 September 2016.[32] The committee recommend the bill be passed in full by the parliament, finding that the existing law was "particularly discriminatory to same-sex attracted young men and could inhibit their ability to receive advice on sexual health", and that it denied "peer acceptance and community support" to gay and bisexual youth.[33][34] The bill passed the parliament on 15 September 2016[3][35] and went into effect following royal assent on 23 September 2016.[36][37] Labor Party politicians voted unanimously along with independent politicians to pass the changes, together with 28 Opposition LNP members. The remaining members of the LNP abstained, while the two Katter's Australian Party politicians were the only votes against the legislation.[3]

Historical conviction expungement proposal[edit]

Following a 2012 Australian Senate inquiry recommending all states and territories move consider pardoning men convicted of consensual acts that would have been legal in modern times, several states and territories, such as New South Wales and Victoria, implemented expungement schemes to have those convictions removed from a person's record.[38] When asked whether Queensland would follow suit, then-Attorney General Jarrod Bleijie initially stated there were "no plans" to do so[38] before subsequently confirming that he would have an "open mind" to reviewing the law following discussions with the state's LGBTI Legal Service.[11]

No action was taken until the election of the Palaszczuk Labor Government, which announced in January 2016 that it had referred to the Queensland Law Reform Commission the issue of expunging historical consensual homosexual sex crimes. The commission reported back to the government on 31 August 2016 with a series of recommendations.[12][39] On 29 November 2016 the Attorney General tabled the report to Parliament and released draft legislation aimed at allowing men convicted or charged with historical homosexual convictions and "certain historical public morality offences" to apply to have their convictions struck from the public record.[40][41] The legislation will likely be dealt with by the Parliament in 2017.

Recognition of gender identity[edit]

Birth certificates and driver licences are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. Queensland can recognise a person's gender transition, but imposes a number requirements to do so - such as confirmation of sexual reassignment surgery and unmarried status - that transgender and intersex activists have campaigned to be abolished.[5]

Change of name[edit]

If a transgender person wishes to change their name as part of their gender transition, they should do so before seeking to update their birth certificate.[4] Queensland only allows people to change their name if they were either born/adopted in Queensland or born overseas but have lived in Queensland for at least twelve months.[42] A name change is allowed every twelve months and cannot be made for criminal purposes, such as fraud.[43]

Updating birth certificate[edit]

In order for Queensland law to recognise a person's gender identity and issue a birth certificate updated with their affirmed sex, the following requirements must be met:[4][44][45]

  • the birth or adoption was registered in Queensland
  • the person must have already changed their name, as demonstrated by a deed poll or change of name certificate
  • the person must be 18 years old (if a child, parental agreement and court approval are required)
  • the person must have undergone sexual reassignment surgery, as verified by the statutory declarations of two doctors
  • the person must not be married - if they have been married, they must prove their single status with a divorce certificate or their former spouse's death certificate.

Activists have called for several existing requirements to be relaxed or removed, to make it easier for people to change their birth certificates.[5] The requirement that a person be unmarried forces transgender people to divorce their spouse in order to change their legal sex. This has led to criticism and attempted reform via social media.[46] The requirement for sexual reassignment surgery has also been criticised by transgender advocates on the basis that this excludes people who may be unable or unwilling to undergo surgery given the potential risks and high costs involved.[5]

In 2016 a spokesperson for Attorney-General Yvette D'Ath noted the Palasczuk Government was working through other areas of LGBTI law reform first, such as age of consent equalisation, gay panic defence repeal and historical conviction expungement, but would consider further reforms once those issues had been resolved.[47]

Recognition of same-sex relationships[edit]

Cohabiting same-sex couples have been recognised as "de facto" partners under Queensland law since 2002 and under Commonwealth law since 2008.[48] Civil partnerships were first introduced by the Australian Labor Party under Anna Bligh in 2012, to allow couples to register their relationship with the option of an official ceremony. They were temporarily downgraded to "registered partnerships" under the short-lived government of Campbell Newman and his Liberal National Party, before being reinstated by the returned Labor administration of Annastacia Palaszczuk in 2016.

Panorama of a 2009 rally in favour of same-sex marriage in Queens Gardens, Brisbane

Same-sex marriages are currently not permitted under Australian federal law. Since 2004, the Commonwealth Marriage Act 1961 has defined marriage as "the union between a man and a woman". In addition, Australian law expressly declares that unions between same-sex couples entered into outside the country are not to be recognised as marriage in Australia. When the Commonwealth Parliament last held a substantive vote on whether to amend the Marriage Act to allow same-sex marriage in 2012, only two out of Queensland's 30 members of the House of Representatives - Graham Perrett and Kirsten Livermore - voted in favour.[49] In the Senate, three of Queensland's 12 Senators - Jan McLucas, Claire Moore and Larissa Waters voted in favour.[49] Members of the opposition Coalition were bound to vote against change, while the governing Australian Labor Party granted its members a conscience vote.[49]

De facto recognition[edit]

The first legislative action to remove discrimination against same-sex couples occurred in December 2002, with the passing of the Discrimination Law Amendment Act 2002. The law amended the definition of "de facto partner" to include same-sex couples. Since then, same-sex partners are now recognised in over 60 pieces of state legislation, including superannuation entitlements, workers compensation, the distribution of property in the event of a separation and state-based parental, family, bereavement and carer's leave provisions, among others.[14]

The Equal Opportunity in Public Employment Act 1992 and the Public Service Act 2008 promotes equality of employment in the public sector. Furthermore, if a gay or lesbian couple came to Queensland from another state where they were recognised as a couple, Queensland will do the same.[50]

While the changes in Commonwealth legislation in 2008 provided complete recognition of same-sex couples at the federal level, Queensland laws are now contradictory, particularly when children are involved. With the federal legislation, the non-biological parent can now be made to pay child maintenance. However, in Queensland, that same person who has to pay child maintenance is not even recognised as a parent. Without some sort of legal guardianship, health services may not accept the other parent authorising procedures for the child. If the biological parent dies, his or her partner would not be considered the next of kin.[50]

Civil partnerships[edit]

Under the Bligh Labor Government, Queensland first allowed civil partnerships with a state-sanctioned ceremony, effectively civil unions, for both same-sex and opposite-sex couples with effect from February 2012. Subsequent changes by the Newman LNP Government watered down civil partnerships in the state , replacing them with "registered relationships" and eliminating official ceremonies from June 2012 onwards. In December 2015, the incoming Palaszczuk Labor Government restored civil partnerships with state-sanctioned ceremonies. The historical developments are detailed below.

Bligh Government[edit]

In June 2008, Queensland Attorney-General Kerry Shine announced that the Queensland Government would begin considering a relationships registry for same-sex couples in the second half of 2008.[51] A Galaxy poll conducted in December 2008 showed 60 percent of people in Queensland supported civil unions with 54 percent supporting gay marriage.[52]

However, no progress was made on the issue until late 2011. On 21 October 2011, Deputy Premier Andrew Fraser announced that he would introduce a private member's bill to legalise civil partnerships, which would allow same-sex relationships to be officially registered in Queensland and would allow the option of an official ceremony. Similarly to the existing recognition of same-sex couples as de facto partners, civil partnerships would provide most of the rights of marriage, excluding adoption rights.[53] Fraser was criticised by the then-Opposition LNP, who claimed his bill was a "political stunt" designed to win Greens preferences in his electorate of Mt Cootha.[54]

The Civil Partnerships Bill 2011 was introduced into Parliament on 25 October 2011 and passed its first reading on a 46-30 vote.[55] On 30 November 2011, it passed its second and third reading on a 47-40 vote. Members of the then-governing Australian Labor Party were granted a conscience vote. Most voted in favour, except for Michael Choi, Geoff Wilson, Margaret Keech and Jo-Ann Miller.[56] LNP members were denied a conscience vote and voted as a bloc against it.[57] They were joined in opposition by most of the cross-bench, except for Peter Wellington.[56] The legislation passed and became law after receiving royal assent on 6 December 2011.[58][59] The law commenced operation on 23 February 2012.[60] The legislation aligned Queensland with Tasmania, Victoria, the ACT and NSW, which had already implemented similar laws.[61]

Details of 2011 Legislative Assembly vote to introduce civil partnerships
Civil Partnerships Bill 2011 – Third Reading[61][62]
Party Votes for Votes against
Labor (50)
Liberal National (31)
Katter's Australian (2)
Independent (4)
Total 47 40

Newman Government[edit]

The 2012 state election was held soon after civil partnerships became available, with differing policy approaches offered by parties. The Australian Labor Party and Queensland Greens supported retaining them without changes.[63][64] Katter's Australian Party proposed a full repeal of the civil partnership law, and were criticised for a homophobic advertisement attacking Campbell Newman for his personal support for same-sex marriage.[65]

Before the LNP took office, party leader Campbell Newman stated that repealing the laws after couples had already entered into civil partnerships would create an "unacceptable and intolerable situation", and so promised to do nothing.[56] He later stated that the party would repeal the law.[66][67]

On 12 June 2012, Premier Newman and Attorney-General Jarrod Bleijie announced that the legislation would be amended to remove aspects that "mimicked marriage", such as the option of an official ceremony, to avoid offending conservative religious groups.[68]

On 22 June 2012 the Civil Partnerships and Other Legislation Amendment Bill 2012 was passed by a 69-8 vote,[69] amending the Civil Partnerships Act with effect from 27 June 2012. All LNP members voted as a bloc to amend the law. They were opposed by the six present ALP members, and Peter Wellington. Liz Cunningham also voted against the bill as she wanted a full repeal of the law, while the two Katter's Australian Party members, who shared her position, abstained.[69]

Apart from renaming the legislation to the Relationships Act 2011, other changes included: replacing civil partnerships with "registered relationships"; amending the termination procedure, so that instead of seeking a court order from the District Court, an application would be lodged with the Registrar of Births, Deaths and Marriages, thereby reducing the similarities with obtaining a divorce; and repealing the option of state-sanctioned ceremonies.[1][70]

Details of 2012 Legislative Assembly vote to replace civil partnerships with registered relationships
Civil Partnerships and Other Legislation Amendment Bill 2012 – Third Reading[69][71]
Party Votes for Votes against
Liberal National (69)
Labor (6)
Katter's Australian (2)[N 3]
Independent (2)
Total 69 10

Palaszczuk Government[edit]

Following the Queensland election in January 2015, the Labor Party returned to power, defeating the Liberal National Party and forming minority government. In May 2015, the Labor Government announced its intention to reinstate civil partnerships and state-sanctioned official ceremonies.[72]

In September 2015, the government introduced the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 to the parliament. Under the legislation, any couple has the option of participating in an official ceremony prior to having their relationships registered. The bill also amends other terminologies used throughout the existing Act including replacing references to ‘registered relationship’ with ‘civil partnership.’[73] The bill received the support of two of the four crossbenchers in the parliament.[74] On 17 September 2015, the bill was referred to the Legal Affairs and Community Safety Committee, who reported back to parliament on 17 November 2015.[75] On 23 November 2015, the LNP opposition announced it would have a free vote on the legislation.[76]

On 3 December 2015, the bill passed the parliament by a margin of 64 votes to 22.[77][78] On 17 December 2015 the legislation was granted royal assent by the Governor,[79] becoming the Relationships (Civil Partnerships) and Other Acts Amendment Act 2015. The Act came into effect following a number of administrative procedures,[80] with civil partnerships resuming in the state on 2 April 2016.[81][82]

Details of 2015 Legislative Assembly vote to restore civil partnerships
Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 – Third Reading[77][83]
Party Votes for Votes against
Labor (43)
Liberal National (40)
Katter's Australian (2)
Independent (1)
Total 64 22

Recognition of interstate and overseas unions[edit]

Queensland automatically recognises the civil union or relationship registration schemes of New South Wales, Victoria, Tasmania and the Australian Capital Territory and they are taken to be a civil partnership for the purposes of Queensland law.[84] For overseas same-sex marriages or other relationship registration schemes, Queensland recognises them under state de facto recognition law.[85]

Adoption and parenting rights[edit]

Adoption and foster parenting[edit]

Since late 2016 same-sex couples are allowed to adopt children, following the passage of legislation by the Queensland Parliament on 2 November.[86] Before that, same-sex couples in Queensland could only become foster parents.[87]

The issue of same-sex adoption first gained prominence in 2007, when the Human Rights and Equal Opportunity Commission (HREOC) issued a report entitled National Inquiry into Discrimination against People in Same-Sex Relationships which recommended amending or creating laws recognising the relationship between a child and both same-sex parents. In particular, "‘Stepparent adoption’ laws should more readily consider adoption by a lesbian co-mother or gay co-father." This will require amendments to remove the prohibition on same-sex stepparent adoption in all state and territory laws other than in WA, the ACT and Tasmania." The final report of the Same-Sex: Same Entitlements Inquiry was tabled in Parliament on 21 June 2007.[88]

The state's adoption rules were revised in August 2009 with the Adoption Act 2009 which only allowed opposite-sex couples who are married or in a de facto relationship for two years to adopt.[89] The Act requires that applicants for both adoption[90][91] and stepparent adoption[92] be married or de facto and "the person's spouse is not the same gender as the person" making the application. Although discriminatory, the Act specifies that the Anti-Discrimination Act is not to apply. One of the Act's key features is to allow foster parents to more easily adopt the child they are fostering. Phil Reeves, the state's minister for child safety, said, "Foster carers with children in their care for a long time - often from birth - frequently express a desire to adopt these children. It is only natural that a child in this situation often feels a true part of the family they have lived with long-term."[93] Same-sex foster parents are explicitly excluded from adopting their foster children. Independent (previously One Nation) MP Dorothy Pratt said, "I must say I was very pleased there was no allowance in this bill for homosexual couples to adopt a child."[94] Queensland Premier Anna Bligh's approach was described as "confusing" by the Queensland Council for Civil Liberties after she stated that "everyone - regardless of their sexual status or their gender - should be afforded the privileges of parenthood" in the context of surrogacy, but failed to apply this logic to adoption laws.[95] The Liberal National government of 2012–15 did not consider the issue of same-sex adoption whilst in power.

Following the return of the Labor Party to power in 2015, Communities Minister Shannon Fentiman suggested that the exclusion of same-sex couples from Queensland's adoption laws was out of step with contemporary standards and most other Australian states and territories. She announced the government was seeking public submissions about the laws as part of a five-year review of the legislation.[96] A review of the state's Adoption Act was held, with submissions the state consultation closing on 11 March 2016.[97] On 6 August 2016, the government announced it would table a bill in the parliament later in the month to remove the ban on same-sex adoption, as well as legislate to allow single people and couples undergoing fertility treatment to adopt. The bill would also allow more information to be given to adoptees, make it easier for step-parents to adopt, and remove the offence and penalty for breaches of "no contact" provisions for adoptions before 1991.[98] To these effects, the Adoption and Other Legislation Amendment Bill 2016 was introduced into the parliament on 14 September 2016 by the Minister for Communities, Shannon Fentiman.[99] The legislation was immediately referred to the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, which reported back to parliament on 26 October 2016.[100] The committee was unable to come to a recommendation, with government MP's supportive of the proposed amendments and non-government MP's unsupportive of the amendments. The committee therefore summarised the varying stakeholder views and included an overview of the government's Department of Communities, Child Safety and Disability Services response to said views, noting that the department was largely in favour of the provisions in the bill allowing same-sex couples, single people and couples undergoing fertility treatment to adopt.[101]

The bill was placed on the Notice Paper for the week of 1–3 November 2016[102] and was debated on 2 November. Parliament divided on six clauses in the bill (all of which expanded the adoption eligibility criteria to allow same-sex couples and single persons to adopt), with 43 votes in favour and 43 opposed. All members of the Labor government voted in favour of the bill and all members of the Liberal National opposition voted against. Independent MP's Rob Pyne and Billy Gordon joined Labor in supporting the bill whilst the two Katter's Australian Party MP's voted against the bill. The Speaker (Independent MP Peter Wellington) cast the decisive vote in favour of the bill, ensuring it passed the parliament.[86][103][104] The legislation went into effect upon receiving royal assent on 11 November 2016,[37] becoming the Adoption and Other Legislation Amendment Act 2016.

Details of 2016 Legislative Assembly vote to allow same-sex adoption
Adoption and Other Legislation Amendment Bill 2016 – Second and Third Readings[103]
Party Votes for Votes against Absent
Labor (42)
Liberal National (42)
Independent (3)
Katter's Australian (2)
Total 44[N 4] 43 2

Access to IVF[edit]

Socially-infertile women (lesbians) are permitted access to in vitro fertilisation treatment in Queensland, and an amendment to the Status of Children Act 1978 now means that in some circumstances the female de facto partner of the birth mother is recognised as a parent. These circumstances are when the child has been born through the use of a fertilisation procedure (such as in vitro fertilisation, assisted insemination or self insemination) with the consent of the birth mother's female de facto partner.[105]

Surrogacy[edit]

The Surrogate Parenthood Act 1988, which commenced on 6 October 1988, prohibited all forms of surrogacy, formal and informal, paid and altruistic. All surrogacy contracts were deemed void and entering into an agreement (or offering to do so), as well as giving or receiving payment were prohibited. Any advertising in relation to surrogacy was also prohibited.[106] It became a criminal offence for a person ordinarily resident in Queensland to enter into a commercial surrogacy arrangement anywhere in the world.

In May 2008, a parliamentary committee was formed to examine whether to decriminalise altruistic surrogacy in Queensland. Commercial surrogacy was immediately ruled out.[107][108] A parliamentary report recommended legalising surrogacy only as a last resort, and people must meet several criteria, including being medically infertile or unable to carry a child.[109]

In October 2009, Attorney-General Cameron Dick released for consultation draft laws to decriminalise altruistic surrogacy and put into place certain strict requirements, including satisfying the court they have undergone counselling, received independent legal advice and have established a medical or social need for the surrogacy. The draft Bill would not restrict who can enter into a surrogacy arrangement, meaning that a couple, either married or de facto (same-sex or heterosexual) or a single person (male or female) may be the intended parent or intended parents in a surrogacy arrangement and then subsequently apply for a parentage order.[110] The government will amend the law to recognise two mothers as parents.[111] The Liberal-National opposition party countered the Labor government's moves by introducing a bill that specifically excludes single parents and same-sex couples from any new surrogacy laws. Queensland's Attorney General called the opposition's response "offensive".[112]

The Labor government's bill, which does not restrict who can enter into a surrogacy arrangement, was tabled in November and passed 45 to 36 on 11 February 2010 with seven not voting. The opposition's surrogacy bill was dismissed, and their amendments did not pass. The decriminalisation of altruistic surrogacy allows singles and couples to enter into surrogacy arrangements and to become the parent of a child. It remains illegal for Queensland residents to enter into commercial surrogacy arrangements anywhere in the world. The law took effect on 1 June 2010.[113][114][115]

During the 2012 election campaign, LNP leader Campbell Newman stated that the party would not change the new surrogacy laws if it won government. However, after the party attained government in 2012, Attorney-General Jarrod Bleijie announced in Parliament that the LNP would amend Queensland's surrogacy legislation to exclude same-sex couples, singles and heterosexual de facto couples of less than two years' standing.[1] Bleijie claimed that Newman had not been "fully briefed" on the LNP's policy platform.[116] Newman later stated that his pre-election promise was a "mistake" given earlier misgivings expressed by LNP members, and that he was listening to the majority of members in his party.[117][118] Subsequently, moderates within the LNP had expressed concern about the proposal to remove surrogacy rights and it was quietly shelved, with Bleijie's announcement described by one colleague as a "brain snap".[119]

Discrimination protections[edit]

On 29 November 2002 Queensland Parliament passed the Discrimination Law Amendment Act 2002 which reformed a wide range of areas in the Queensland Ant-Discriminition Act 1991 such as couples (whether same sex or de facto), including transgender persons ("gender identity") and "sexuality" in protection under existing Anti-Discrimination and Anti-Vilification legislation. The areas covered are work and work related; education; goods and services; superannuation and insurance; disposal of land; accommodation; club membership; administration of state laws and programs; local government; existing partnership and in pre-partnership.[120]

In practice, those facing discrimination on the basis of gender identity have faced difficulties in pursuing anti-discrimination claims - in its 2013 annual report, the Anti-Discrimination Commission of Queensland noted that a single gender identity claim - 0.2% of its work - had been upheld.[121] Trans men and women potentially face years waiting for their claims to be resolved, with little support available for people outside south-east Queensland and Cairns.[121]

Australian federal Commonwealth Government under law does outlaw discrimination based on "marital or relationship status, sexual orientation, gender identity and/or intersex status" at the federal level at various levels that cover aged care, employment, health services, goods and services, accommodation, etc. since August 2013. Federal employment protection does include "sexual orientation" in the federal Fair Work Act 2009.[122] However, in response to Australia's obligation 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. It is important to note that such discrimination is not rendered unlawful under the Act.

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.[123] As of August 2013, the Australian federal Commonwealth Government under law does provide protections for "marital or relationship status, sexual orientation, gender identity and/or intersex status" at the federal level at various levels that cover aged care, employment, health services, goods and services, accommodation, etc. in the Human Rights Commission Act 1981 (Commonwealth legislation).[124]

Federal law also protects LGBT and Intersex people in Queensland after additional protected attributes were added to the Sex Discrimination Act 1984 by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, with effect from 1 August 2013.[125]

Schools and LGBTI students[edit]

80% of 581 gay and lesbian students surveyed in Queensland reported being bullied in a La Trobe University survey, the worst result in the country.[126] Queensland is the only state with no official policy in place to combat homophobic bullying.[126]

The Queensland Government did publish a policy statement entitled "Supporting Same Sex Attracted, Intersex or Transgender Students at School" in 2013, but it subsequently revoked the policy in favour of allowing principals to make decisions on a case by case basis.[127] Education Minister John-Paul Langbroek noted there were "contentious views associated with gender diverse and same-sex attracted students", including opposition to recognising LGBT issues in schooling.[127] The draft policy statement had encouraged state schools to have coeducational sporting teams, gender neutral uniforms and consider scheduling physical education classes to cut down on the number of clothes changes required.[127] Instead, principals were to be provided with "supporting materials".[128] The policy change was criticised by PFLAG national spokeswoman Shelley Argent while Australian Transgender Support Association Queensland president Gina Mathers supported the move to case-by-case decision-making, while expressing cynicism about its practical application.[127][128]

Homosexual advance defence[edit]

In Queensland, a person charged with the murder of a gay person can claim that he or she was provoked by a non-violent homosexual advance from the victim; this can act as a partial defence to murder; reducing the crime to manslaughter.[129] [130] As of August 2016, the only other Australian state still allow this defence, to be used in common law like Queensland is South Australia.[130]

A 2008 report by the Queensland Law Reform Commission on the topic of provocation stated "it is difficult to imagine how a non-violent sexual advance to a man by a woman could be regarded as justification for killing the person making the advance... in principle, gender should make no difference to the law's conclusion".[131]

The use of this defence by two men who killed another man in 2008 in the grounds of St Mary's Catholic Church in Maryborough led the local priest, Father Paul Kelly, to launch a Change.org petition to remove its application from Queensland law.[132] The petition was supported by British comedian Stephen Fry[132] and obtained 289,000 signatures by 2016.[133] Although the ALP Government flagged its intention to remove the defence, following the election of an LNP government in 2012, new Attorney-General Jarrod Bleijie stated that no changes would be made.[134]

In May 2016, the Palaszczuk Government announced its intention to remove the homosexual advance defence by the end of the year.[135] A number of celebrities subsequently voiced their support for the abolition of the homosexual advance defence by the year's end, including Tom Ballard, Benjamin Law, Josh Thomas, Rove McManus, Missy Higgins and Faustina Agolley.[133]

On 30 November 2016 the Attorney-General introduced legislation to amend the provocation section of the Criminal Code so that an "unwanted sexual advance" could no longer be used to reduce a murder charge to manslaughter.[136] The defence of provocation would still be available in "exceptional circumstances", such as a history of violence by the victim against their killer, which would be assessed on a case-by-case basis by a judge.[136] The bill, the Criminal Law Amendment Bill 2016, was referred to the Legal Affairs and Community Safety Committee, which is due to report back to parliament by 21 February 2017.[137]

Social conditions[edit]

Social attitudes to homosexuality[edit]

A 2005 paper by the Australia Institute, Mapping Homophobia in Australia, found that 38% of Queensland respondents considered homosexuality to be immoral, making it one of the most homophobic states in Australia, alongside Tasmania.[138] Overall the most homophobic areas in the study were the Moreton area of country Queensland (excluding the Gold Coast and Sunshine Coast), Central/South-West Queensland and the Burnie/Western district of Tasmania, where 50 per cent considered homosexuality to be immoral.[138]

A 2010 Roy Morgan poll confirmed Queensland as being the most anti-gay state in the nation, with one third of Queensland respondents considering homosexuality to be immoral.[139] The state had the three federal electorates with the highest proportions of respondents considering homosexuality to be immoral - the Division of Capricornia (44.7%), the Division of Wright (44.1%) and the Division of Hinkler (42.8%).[139] The state had nine of the twenty most homophobic federal electorates.[139] While inner-city suburbs of Brisbane, the state's capital, were relatively tolerant, they still lagged the southern state capitals of Sydney and Melbourne.

In a 2016 study of support for the proposed legalisation of same-sex marriage in Australia, Queensland had five of the ten federal electorates most strongly opposed - with the only electorate recording over 50% opposition being the south-west Queensland-based division of Maranoa.[140] At the other end of the spectrum, the division of Brisbane was the tenth-most supportive electorate in Australia.[140]

Anti-LGBTI harassment[edit]

In 2010, Alan Berman and Shirleene Robinson released the findings of the largest survey ever undertaken into homophobic and transphobic abuse and reporting in Queensland.[141][142] It found that overwhelming majorities of respondents had experienced some form of abuse.[143] In relation to verbal abuse, the statistics were 76% of men, 69% of women, 92% of trans women and 55% of trans men.[143] For physical assault without a weapon, the figures were 32%, 15%, 46% and 45% respectively.[143] Where a weapon, knife, bottle or stone was involved, the statistics were 12%, 6%, 38% and 9% respectively, with 12% for "other".

The study found that 75% of LGBTI survey respondents did not report the abuse to police, with attackers usually being young men who did not know their victim.[142][143]

Domestic violence[edit]

A person who is in a same sex, spousal or intimate personal relationship is protected by the Domestic and Family Violence Protection Act 1989. Couples in same-sex relationships who are victims of relationship violence may take out domestic violence orders against a violent partner, and other protective measures, including counselling services.

In 2014, Marcus Volke drew heavy media attention after murdering his transgender wife and committing suicide.[144][145] The coverage of local newspaper the Courier Mail, which initially referred to her as a "she-male", mentioned her prostitution career and featured photos of her posing in a bikini, drew widespread condemnation for its transphobia, sensationalism and victim-blaming.[146][147][148][149] The Courier Mail subsequently apologised for its coverage.[145] In the aftermath of the case, criminologist specialising in domestic violence Sharon Hayes noted that transgender victims of domestic violence often "fell through the cracks", with a lack of support from women's refuges and other services.[150]

LGBTI health[edit]

Queensland AIDS Council[edit]

The peak LGBTI health organisation is the Queensland AIDS Council (QuAC), which has also been known as the Queensland Association for Active Healthy Communities (QAHC)[N 5] which was founded in 1984. The organisation has run various HIV/AIDS prevention programs since that time, including a controversial "Rip and Roll" safe sex billboard campaign showing two clothed men embracing while holding a condom packet. The ads were temporarily removed by billboard company Adshel after an Australian Christian Lobby-orchestrated complaint campaign before being reinstated following a public outcry.[153] Before the 2012 election, when the LNP was opposing the ALP's civil partnerships legislation, QAHC (as it was then known) launched a "Speak out for equality" campaign in favour of the legislation.

Newman Government policy[edit]

After the LNP won office in the 2012 election, it withdrew funding from QAHC, alleging that the organisation's advocacy had become inappropriately politicised and too far removed from its initial focus on preventing HIV/AIDS, alleging that its initiatives to reduce HIV infection were not working.[154][155] This claim was contradicted by statistics demonstrating that in the 2010-2011 period before QHAC was defunded, new HIV infections had declined whereas they had risen in southern states.[156]

The withdrawal of $2.5 million funding caused 26 of the organisation's 35 staff to lose their jobs.[157] Health Minister Lawrence Springborg announced that he would set up an expert ministerial advisory committee on HIV/AIDS instead. The minister made the announcement through the media without contacting the organisation beforehand.[155]

One of the members appointed to the nine person HIV/AIDS ministerial advisory committee, Dr Wendell Rosevear, subsequently resigned from the committee, likening the government to a "homophobic schoolyard bully".[158] He cited the government's decision to defund QAHC and new rules forbidding non-profit organisations from agitating for state or federal law changes if their group receives half or more of its funding from Queensland Health and other state agencies as a "king hit" to the gay community.[158]

Springborg announced his determination to eradicate HIV in Queensland, including through a cross-media "END HIV" campaign, free rapid HIV testing.[159] The remaining members of the ministerial advisory committee led an "END HIV" campaign in a bid to reduce new HIV infection.[160]

Springborg subsequently replaced the ministerial advisory committee with a new body, HIV Foundation Queensland, on World AIDS Day, 1 December 2013 to advise the state government on HIV/AIDS strategy and facilitate research.[160] This development was welcomed by LGBTI health advocates.[160]

Palaszczuk Government policy[edit]

With the election of the Palaszczuk Government in 2015, incoming health minister Cameron Dick announced that funding would be restored to the Queensland AIDS Council, with continued focus on preventative health, research and promotion.[161] The government also justified equalising the age of consent for all forms of sexual activity at 16, to encourage younger Queenslanders to obtain health services without the fear of being criminalised.[34]

LGBTI community[edit]

Accurate estimates of the LGBTI population are difficult owing to under-reporting, particularly among older same-sex couples.[162] According to the first Australian Study of Health and Relationships, conducted in 2003, approximately 1.6% of Queensland male respondents identified as homosexual and 1.0% identified as bisexual. For women, the figures were 0.8% and 1.7% respectively.[163] When it came to reported sexual attraction, 6.0% of Queensland men reported attraction to both sexes and 0.7% exclusively to the same sex. For women, the corresponding statistics were 11.7% and 0.2%.[163] For sexual experiences, 5.5% of men and 7.7% of women reported having had sexual experiences with both sexes and 0.4% and 0.03% reported sexual experiences exclusively with their own sex.[163] This has led to an estimate of there being between 72,000 and 370,000 LGBT people living in Queensland.[164]

According to the 2011 Australian Census, the highest proportion of same-sex couples in Queensland live in inner-city Brisbane and on the Gold Coast.[10] Queensland's top ten gay suburbs are New Farm, Fortitude Valley, Teneriffe, Nundah, Coorparoo, Surfers Paradise, Moorooka, West End, Southport and Clayfield.[10]

The 2013 Queensland Gay Community Periodic Survey reported that between 2011 and 2013, there was a significant increase in the proportion of men who reported having met men through the mobile applications such as Grindr (26.2% to 38.5%). Mobile applications have become the most common way that men in Queensland meet male sex partners. Other common methods include meeting through the internet (37.7%), gay bars (28.1%), saunas (27.5%) and meeting men while visiting other Australian cities (21.1%).[165]

There are a variety of community venues and events throughout Queensland for the LGBTI community.

Brisbane hosts several annual events: the Big Gay Day in March, the Brisbane Queer Film Festival at the Brisbane Powerhouse in April and the Brisbane Pride Festival in September, which originally began as a protest march in 1990.[166] It also hosts Brisbane Leather Pride for the leather subculture in July and Northern Exposure for the bear subculture in October.[166]

LGBTI venues in Brisbane include The Beat Mega Club, the Wickham Hotel and the Sportsman Hotel.[166] Some venues offer regular LGBTI-focussed events, such as the weekly "Fluffy" parties at the Family nightclub, the female-only "Scarlet" and the male-only "White Wolf".[166] The city also hosts several sex-on-premises venues: the gay saunas Wet Sauna and Bodyline and the cruising clubs The Den and Klub Kruise.[166]

There are various LGBTI venues and events in regional Queensland. The Gold Coast hosts gay club Escape and the annual Gold Coast Gay Day in May. Cairns has a week-long Tropical Mardi Gras festival in October[167] with gay-friendly nights at the Vibe bar while Townsville's gay venue is the Sovereign Hotel.[166]

Politics[edit]

By Australian standards Queensland has a comparatively conservative political culture, with right wing parties enjoying stronger levels of support compared to other states.[139] LGBTI support is strongest in south-east Queensland and Brisbane, where it is similar to national levels, while it is weakest in the state's rural and regional areas to the north and west.[7] Two factors have been suggested for the lower levels of support in those areas: a stronger religious culture and less ethnic and cultural diversity.[168] One example is the Darling Downs, where anti-LGBT group the Australian Christian Lobby first arose.[168] The regional hostility to LGBTI rights is reflected in controversial statements made by several regional Queensland politicians, such as George Christensen and Bob Katter.[7] By contrast, Cairns conservative MP Warren Entsch has been a strong supporter of LGBTI rights for many years.[169]

The presence of a powerful "religious right" lobby in the conservative Liberal National Party of Queensland (LNP) drew attention in the media.[170] This lobby included, among others, the founding president of the party organisation Bruce McIver, a conservative Christian strongly opposed to gay equality; former Parliamentary Speaker Fiona Simpson, who once stated that gays could "grow into heterosexuality over time" and Vaughan Johnson, who said in 1999 that homosexuality was "totally immoral", "anti-family" and "against what Jesus Christ put us on this planet for" before stating he had become "tolerant" of homosexuality in 2002.[171] Former LNP member and subsequent Katter's Australian Party member Shane Knuth stated that his fellow "happy clappers" were a powerful lobby group within the Liberal National Party.[155] Religious conservatives have historically featured across the political spectrum in Queensland, including some political independents and minor parties, ranging from the anti-gay Katter's Australian Party to the relatively gay-friendly Labor Party.[170]

However, the impact of social conservatism in the state has gradually declined over time, particularly in metropolitan areas such as the state capital Brisbane and the surrounding south-east Queensland region.[9] At the 2016 Australian federal election, the division of Brisbane made Australian history as the first electorate where both candidates from the major parties were openly gay, while one of the minor party candidates was transgender.[172]

Following the victory of the LNP at the 2012 state election, the party enacted several policy changes that were criticised by gay rights advocates.[173] These included: defunding Queensland Association for Healthy Communities, the state's sole LGBTI health organisation, on the grounds that it had developed an excessively political focus;[154] downgrading civil partnerships to a "registered relationships" scheme;[174] and refusing to remove the homosexual advance defence from the state's criminal law.[175]

The LNP was defeated by Labor at the 2015 state election. The incoming Labor government introduced a number of LGBTI law reforms, such as reinstating civil partnerships, equalising the age of consent and considering proposals to allow same-sex adoption, the expungement of historical convictions for consensual gay sex and removing the homosexual advance defence.[7]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1990 for men; always for women)
Equal age of consent Yes (since 2016)
Recognition of gender transition Yes (since 2002, still requires sexual reassignment surgery and divorce if married)
Anti-discrimination state laws for sexual orientation Yes (since 2002)
Anti-discrimination state laws for gender identity and expression Yes (since 2002)
Hate crime laws include sexual orientation No
Hate crime laws include gender identity or expression No
Gay sex criminal records expunged No (bill pending)
Homosexual advance defence abolished No (bill pending)
Recognition in state law of same-sex couples as domestic partners Yes (de facto since 2002; civil partnerships since 2012)
Step adoption by same-sex couples Yes (since 2016)
Joint adoption by same-sex couples Yes (since 2016)
Automatic IVF/artificial insemination parenthood for female partners Yes
Access to IVF for lesbians Yes
Same-sex marriages No (federal jurisdiction)
MSMs allowed to donate blood Yes (one year deferral - Australia-wide)

See also[edit]

Notes[edit]

  1. ^ Between June 2012 and April 2016 civil partnerships were replaced with "registered relationships", which were introduced by the Liberal National Party of Queensland to remove official ceremonies among other changes[1]
  2. ^ "Buggery" was the British term for anal sex, while gross indecency referred to other homosexual behaviour where anal sex could not be proven, such as oral sex and mutual masturbation.[2]
  3. ^ Although the Katter Party MPs voted against the third reading, they abstained from the second reading[69]
  4. ^ The Speaker does not normally vote but with the vote tied 43-all, cast the deciding vote in favour of allowing same-sex adoption[104]
  5. ^ Before 2006, it was known as the "Queensland AIDS Committee". It was known between 2006 and 2013 as the "Queensland Association for Healthy Communities", reflecting a broader focus on general LGBTI welfare.[151] The group reverted back to the "Queensland AIDS Council" moniker at its 2013 annual general meeting.[152]

References[edit]

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Further reading[edit]

External links[edit]

Official resources
LGBTI community services
Transgender-specific resources