LGBT rights in Victoria

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Victoria locator-MJC.png
StatusAlways legal for women; legal for men since 1981
Gender identitySexual reassignment surgery required for a new birth certificate
Discrimination protectionsYes (both state and federal law)
Family rights
Recognition of relationshipsSame-sex marriage since 2017
Domestic partnership registries since 2008
AdoptionYes

The Australian state of Victoria is regarded as one of the most progressive jurisdictions with respect to the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people.[1][2][3][4]

Laws regarding homosexuality[edit]

Buggery was a crime in Victoria[5] from 1958 until December 1980, when the Hamer Liberal government repealed the state's sodomy laws, with the death penalty being on the books for sodomy in Victoria until 1949.

The law passed 72–7,[6] and went into effect in March 1981.[7] The age of consent for homosexual acts was set at 18.[8] However, a loosely worded "soliciting for immoral purposes" clause, inserted by dissident Liberals, saw police continue to harass homosexual men until the late 1980s.[9]

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 it was short-lived. It was followed by the gay rights organisation Society Five, which formed in 1971.[8][10] Additional rights organisations followed, including the Homosexual Law Reform Coalition in 1975 and the Gay Teachers Group in the late 1970s,[11] both of which were also based in Melbourne.

The Victorian LGBT community monitored 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.[12][13]

The age of consent for homosexual acts was equalised to 16 in 1991 by the Crimes (Sexual Offences) Act 1991.[8]

HIV transmission law repeal[edit]

In 2015, the Victorian Government announced it would repeal Section 19A of the Crimes Act, a law which singled out intentional HIV transmission for harsher penalties of up to 25 years imprisonment, while the maximum penalty for manslaughter is 20 years. As a result of the reform, intentional infection of HIV is considered under existing criminal offences such as "causing serious injury".[14] The Crimes Amendment (Repeal of Section 19A) Act 2015 passed the Legislative Assembly on 7 May 2015 and passed, with bipartisan support, the Legislative Council on 28 May 2015, receiving royal assent on 2 June 2015, and went into effect immediately.[15][16]

Historical convictions expungement[edit]

Since 1 September 2015, an individual or an appropriate representative of a deceased person can apply to expunge historical convictions for homosexual sexual activity, that is no longer a criminal offence.[17] The scheme was created via the Sentencing Amendment (Historical Homosexual Convictions Expungement Act) 2014, which was passed by the Parliament of Victoria in 15 October 2014 [18] and received Royal Assent on 21 October 2014,[19] and came into effect on 1 September 2015.

Application to have a conviction expunged can be made to the Secretary of the Department of Justice & Regulation. After a conviction is expunged the individual can claim not to have been convicted or found guilty of that offence, ensuring they will not be required to disclose such information and that the conviction does not show up on a police records check.[17] Without the law, men who were convicted have had to deal with consequences, including restrictions on travel and applying for some jobs.[20]

Schemes of this nature exist in all other jurisdictions of Australia.

On 24 May 2016, the Victorian Government issued a formal apology, delivered in Parliament, to the LGBTI community and specifically men who had been charged with homosexual offences in the state prior to its decriminalisation in 1981.[21][22] Premier Daniel Andrews said in a speech to the Victorian Parliament:

"On behalf of the parliament, the government and the people of Victoria: for the laws we passed, and the lives we ruined, and the standards we set, we are so sorry; humbly, deeply, sorry.”[23]

Opposition leader Matthew Guy said the following:

Australia post-war was a very, very intolerant place towards gay people, particularly gay men, and today we're going to apologise for that.

Recognition of same-sex relationships[edit]

Same-sex marriage[edit]

Same-sex marriage became legal in Victoria, and in the rest of Australia, in December 2017, after the Federal Parliament passed a law legalising same-sex marriage.[24]

Relationship registers[edit]

In April 2007, the City of Melbourne set up a Relationship Declaration Register[25] for all relationships and carers, and the City of Yarra launched its Relationship Declaration Register[26] the following month.[27] Under the programs two people may declare that they are partners and have this declaration recorded in the Relationship Declaration Register. Though 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. Both local governments discontinued the registers in 2018, after the federal legalisation of same-sex marriage.[28][29]

Domestic partnerships[edit]

Since 2008, Victoria has allowed same-sex couples to register their relationships as a domestic partnership, specifically a "domestic relationship", under the Relationships Act 2008.[30] A bill was introduced in the Parliament in December 2007 by the Bracks Labor government to allow same-sex couples to register their relationships with the Registry of Births, Deaths and Marriages and to amend 69 other pieces of legislation to provide for couples who are in registered relationships.[31] The bill was passed by the Victorian Legislative Assembly on 12 March 2008 on a vote of 54 to 24.[32] The Legislative Council voted in favour of the bill without amendments on 10 April 2008 and it was approved and given Royal Assent on 15 April 2008. The Relationships Register came into operation on 1 December 2008.[33][34]

In October 2015, the Andrews Labor government announced its intention to introduce legislation to make Victoria the fourth state in the nation to register, in its relationships register, marriages and civil partnerships of same-sex couples performed overseas, so long as one member of the couple is a Victorian resident.[35] The Relationships Amendment Bill 2015 was introduced to the Parliament on 6 October 2015, passing the Legislative Assembly on 12 November 2015.[36] The bill proceeded to the Legislative Council, where debate resumed on 10 December 2015. An amendment made at committee stage was agreed to by a majority of the Council. The amendment inserted a new clause, Section 10(4): "The register may conduct a ceremony in connection with the registration of a registrable domestic relationship under this section."[37] The amendment, previously moved by Greens MP Sam Hibbins in the lower house, would allow couples the option of holding an official ceremony when registering their relationship.[38][39] The bill returned to the Assembly for consideration of the Council's amendment on 10 February 2016. The Assembly agreed to the principle of allowing couples the option of holding an official ceremony when registering their relationship, though did so by altering the language of the Council's amendment and moving it to after section 27 (1) (a) of the bill. The Council promptly agreed to the Assembly's amendments, completing the final stage of the legislative process.[40][41] The bill received Royal Assent on 16 February 2016, to become the Relationships Amendment Act 2016. Portions of the law providing immediate recognition of a domestic relationship for unions entered into in different jurisdictions, removing the previous 12-month living requirement for couples and recognising de facto relationships, overseas same-sex marriages and civil unions on death certificates, went into effect from 1 July 2016.[42][43] Under the commencement provisions of the legislation, the entirety of law went into effect on 1 October 2016.[44]

De facto relationship recognition legislation[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.[45]

Civil union proposal[edit]

In March 2006, openly gay 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.[46]

Adoption and parenting rights[edit]

Adoption[edit]

Victorian law has allowed same-sex adoption since 1 September 2016. In May 2014, the state conference of the then opposition Victorian Labor Party unanimously approved a change in the party's platform, in support of full adoption rights for same-sex couples.[47][48] After Labor won government at the November 2014 state election, the newly appointed Equality Minister Martin Foley promised to amend the Adoption Act 1984 to allow for adoptions by same-sex couples. 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.[49] A review of Victoria's adoption laws, commissioned by former chief parliamentary counsel Eamonn Moran QC, handed a final report to the Minister on 8 May 2015.[50][51]

A bill to give same-sex couples adoption rights was introduced to Parliament on 6 October 2015.[52][53] On 22 October 2015, the bill was debated for several hours in the Legislative Assembly, passing its second reading by a vote of 54 to 26, with 7 abstentions.[54][55] Despite failing to pass an amendment designed to allow faith-based adoption agencies to refuse to allow same-sex couples to adopt children, the Liberal/National (Coalition) opposition elected to have a conscience vote on the legislation. Six of the eight Nationals lower house MP's voted in favour of the bill, whilst all Liberal MP's voted against. The bill proceeded to the Legislative Council, where debate resumed on 12 November 2015. The bill, as it related to allowing adoptions by same-sex couples, passed comfortably by a margin of 31 to 8. However, a bare majority of Coalition and crossbench members of the Council narrowly passed an amendment eliminating amendments to the Equal Opportunity Act 2010, which would have prevented faith-based organisations from being able to refuse adoption orders for same-sex couples.[56][57] Of the four adoption agencies in Victoria providing "stranger" adoptions,[58] only one faith-based group providing adoption services, Catholic Care Victoria, which was responsible for 5 Victorian adoption orders in 2014, has expressed its desire to make use of such an exemption,[59] and had threatened to cease providing adoption services if it was compelled to assist adoptions to same-sex couples. The bill in its amended form returned to the Legislative Assembly, which passed the amended bill on 9 December 2015.[60] The bill received Royal Assent on 15 December 2015,[52] becoming the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015. The law went into effect on 1 September 2016.[61][62]

Prior to that reform, same-sex couples could only be appointed as foster parents or guardians, and did not have the right to adopt a child together – even if that child had been in their care for years.[50]

In response to the 2007 Victorian Law Reform Commission report into assisted reproduction, surrogacy and adoption, the then Brumby Labor government stopped short of allowing same-sex couples full adoption rights.[63]

A Supreme Court of Victoria decision in 2010 concerning the Charter of Human Rights and Responsibilities Act 2006 granted individual gay men and lesbian women some adoption rights by concluding that the state's Adoption Act 1984 "permits one person in a same-sex couple to adopt", opening the door to step-parent adoption for some couples.[64][65] The Liberal Government of 2010–14 briefly examined the issue of same-sex adoption in the later stages of its term in office, though despite Premier Denis Napthine expressing an openness to reform, the issue was never substantially tackled by the Government.[66]

Assisted reproduction and surrogacy[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.[67] 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.[68]

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 opened the door for lesbian couples to use IVF procedures.[69][70]

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.[71] 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.[72] Birth certificates could use the word parent instead of mother and father.[73]

Victoria adopted most of the 202 recommendations of the Victorian Law Reform Commission in legislation which was introduced to Parliament in September 2008.[74][75] This made IVF legal for all women (except sex offenders), and gave parents of surrogate children, including female same-sex partners, greater parenting rights.[76] Altruistic surrogacy would become legal, while commercial surrogacy would remain illegal.

The lower house voted 47–34 in favour of the Assisted Reproductive Treatment Bill 2008, with all Coalition members voting against it.[77] After passing the upper house by just two votes, the bill was amended and forced back for another vote in the lower house, where it passed. The bill subsequently received Royal Assent on 4 December 2008 and became effective from 1 January 2010.[78][79]

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.[80][81]

Since 2010, the Equal Opportunity Act 1995 has been repealed and replaced with the Equal Opportunity Act 2010[82] - 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.[83]

In December 2014, the Labor Government promised 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.[84] On 31 August 2016, the government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 to the Legislative Assembly.[85] The bill amended the Equal Opportunity Act 2010 and sought to reinstate an 'inherent requirements test', which would mandate that a religious body or school could only discriminate against employees in circumstances related to the employment of a person where "conformity with the body or school’s religious doctrines, beliefs or principles is an inherent requirement of the job, and, because of a particular personal attribute, the person does not meet that inherent requirement".[86][87] The bill passed the assembly by 44 votes to 36, with the Coalition Opposition voting against the bill.[88] The bill then proceeded to the Legislative Council, where the second reading stage began on 11 October.[89] The bill was rejected by the Council on 6 December 2016, the vote tied at 19 votes-all.[90][91]

Gender and Sexuality Commissioner[edit]

In July 2015, Minister for Equality Martin Foley announced the appointment of the inaugural Gender and Sexuality Commissioner, Rowena Allen. The Commissioner has a broad role aimed at integrating the advocacy of LGBTI rights within the Government.[92] Types of roles initially under scrutiny of the Commissioner included the streamlining of federal and state laws to ensure passports and birth certificates align with a person's affirmed gender, as well as strengthening anti-discrimination protections in the workplace for transgender workers.[1]

Conversion therapy ban[edit]

In February 2016, the government announced it would promptly introduce legislation to "crack down" on gay conversion therapists in the state.[93] On 9 February 2016, the Health Complaints Bill 2016 was introduced to the lower house of the Victorian Parliament. The bill creates a Health Complaints Commissioner with increased powers to take action against such groups; these powers ranging from issuing public warnings to banning them from practicing in Victoria.[94] The bill passed the lower house on 25 February 2016, passed the upper house on 14 April 2016 with minor amendments and passed the lower house with the attached amendments on 27 April 2016.[95] Royal assent was granted on 5 May 2016. The law went into effect on 1 February 2017.[96] The law creates a new health watchdog in the state, which provides the Commissioner with powers to issue temporary or permanent bans on health providers who aren’t registered under law such as those providing ‘gay conversion therapy’.[97] A specific and targeted investigation was launched by the watchdog into the practice in May 2018, raising the spectre of financial punishment and criminal prosecution for rogue operators.[98]

In February 2019, the newly re-elected Labor Government announced it would introduce legislation at a later date that would clearly and unequivocally denounce conversion practices and prohibit them in law – following a recommendation issued by the Health Complaints Commissioner.[99][100]

Transgender rights[edit]

Birth certificates and driver licences are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. Victoria does legally recognise a person's gender transition but imposes requirements, such as only after undergoing sexual reassignment surgery.

Protections[edit]

Gender identity is recognised and is a protected attribute under Victorian law, meaning a transgender person cannot be discriminated against in employment and in other areas of life.[101]

Updating birth certificates[edit]

Victorian law no longer has the requirement for a person to be unmarried in order to change the sex recorded on their birth certificate. The requirement was set to lapse in December 2018 following the federal legalisation of same-sex marriage in 2017, however the Parliament amended state law to this effect in May 2018.[102]

Previously, in August 2016, the Andrews Labor Government sought to pass legislation removing the unmarried requirement and also the requirement for transgender people to undergo sex reassignment surgery before amending their birth certificate. If passed, the legislation would have allowed parents to alter the gender descriptor of their child, with the child's informed consent and would also have simplified the existing administrative corrections for intersex people.[103][104][105] The Births, Deaths and Marriages Registration Amendment Bill 2016 was introduced to the parliament on 18 August 2016 and passed the Legislative Assembly by 45 votes to 35 on 18 September 2016.[106] The bill proceeded to the Legislative Council though was rejected by the council on 6 December 2016, following a 19-19 tied vote.[107]

In March 2018, the government sought to address the unmarried requirement. It introduced the Justice Legislation Amendment (Access to Justice) Bill 2018 on 27 March 2018, which removed the unmarried requirement from state law. The sexual reassignment surgery requirement remains.[108] The bill passed the Parliament on 22 May 2018.[109] The bill received royal assent on 29 May 2018 and the portion of the law relating to birth certificates went into effect on 12 October 2018.[110][111]

Intersex rights[edit]

In June 2016, Organisation Intersex International Australia pointed to contradictory statements by the Victorian and other Australian governments, suggesting that the dignity and rights of LGBT and intersex people are recognised while, at the same time, harmful practices on intersex children continue.[112]

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.[113] The statement calls for legal reform, including the criminalisation of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support.[113][114][115][116][117]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1981 for men; always for women)
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
Laws against LGBT vilification No
Gay sex criminal records expunged Yes
Gay panic defence abolished 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
Automatic IVF/artificial insemination parenthood for female partners Yes
Access to IVF for lesbians Yes
Conversion therapy on minors outlawed Yes The first and only place within Australia
Same-sex marriages Yes
Change of gender marker on birth certificate Yes (Since 2003 - legally requires sexual reassignment surgery)
MSMs allowed to donate blood Yes (One year deferral - Australia-wide)

See also[edit]

References[edit]

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