LGBT rights in Western Australia

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LGBT rights in Western Australia
Western Australia locator-MJC.png
Same-sex sexual activity legal? Always legal for women; legal for men since 1990
Discrimination protections Yes, under state law since 2002 and federal law since 2013
Family rights
Recognition of
De facto unions since 2002 (no relationship register)
Same-sex marriage prohibited under federal law since 2004; see History of same-sex marriage in Australia
Adoption Yes since 2002 (but a ban on altruistic surrogacy access for gay couples remains)

Western Australia, an Australian state, has made significant reforms relating to the rights of lesbian, gay, bisexual and transgender (LGBT) people. The most important of these reforms occurred in 2002, when the Acts Amendment (Gay and Lesbian Law Reform) Act 2002 passed the Parliament. Same-sex couples, though recognised as being in a de facto union, lack access to a state-based relationship recognition scheme, something that occurs in all other Australian states. The Surrogacy Act 2008 also bans single people and same-sex couples from altruistic surrogacy agreements, making Western Australia the only jurisdiction within Australia to have this law.

Laws regarding homosexuality[edit]

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

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achieved equalisation of consent ages in 2002 via the Acts Amendment (Gay and Lesbian Law Reform) Act 2002, which also repealed the laws with respect to promotion of homosexual behaviour in public policy and in educational institutions.[3]

Historical convictions expungement proposal[edit]

Attempts to allow men who have previously been convicted of consensual homosexual sex crimes prior to its decriminalisation in 1990 have gained traction in recent years. In April 2016, the Law Society of Western Australia submitted a detailed proposal to the state Attorney-General, recommending a scheme be implemented to allow individuals who have been convicted of an historical homosexual offence apply to have that conviction be expunged.[4] The opposition Labor Party pledged to implement such a scheme if elected at the March 2017 election.[5] The incumbent Coalition Government stated it would consider legislating a scheme,[6] though failed to so before the March 2017 election.

Schemes of this nature exist in Victoria, South Australia, New South Wales and the Australian Capital Territory.

Recognition of same-sex relationships[edit]

De facto unions[edit]

Western Australia is one of two jurisdictions in Australia (the other being the Northern Territory) not to offer relationship registries and official domestic partnership schemes to same-sex couples. Instead, state law provides same-sex couples with de facto unions, which have been recognised under Western Australian family law since 2002.[7] In order for a same-sex couple to be officially recognised as a de facto union, or for de facto same-sex couples to legally remedy divorce proceedings, the Family Court of Western Australia is charged with permitting that recognition or divorce. These state laws recognise same-sex couples rights to next of kin recognition, partner's state superannuation and compensation in the event of partner's death, amidst a whole host of other things.[8] Same-sex couples in Western Australia and their relationships are also covered by federal law,[9] ensuring that same-sex de facto partners are provided with same entitlements as married partners.[10]

Relationship declaration programs[edit]

Relationship declaration programs are available in two places within Western Australia, namely the City of Vincent[11] and the Town of Port Hedland.[12][13][14]

Marriage equality motion conscience vote[edit]

On September 23, 2015, the Parliament of Western Australia passed a motion calling on the federal government, to pass the Marriage Equality Bill 2015, based on a conscience vote.[15][16] Both Tasmania and New South Wales also passed a similar motion.

Motion wording:

1. Notes Members of the Parliament of Western Australia and the community hold various views on the issue of marriage equality 2. Wishes our federal colleagues a respectful debate that is tolerant of all views 3. Notes the importance of MPs being free to express their own view and the views of their electorates on this issue

Adoption and parenting rights[edit]

Same-sex couples are permitted to adopt in Western Australia[17] as a result of the Acts Amendment (Gay and Lesbian Law Reform) Act 2002[18] which in turn amended the Adoption Act 1994 to include same-sex couples as eligible to adopt a child and include provisions for same-sex step-parent adoptions.

Since February 2017, most Australian jurisdictions legally allows same-sex couples to adopt children - except for the Northern Territory.

The 2002 Act is extensive in that also amends several other Acts to enable same-sex couples have access to assisted reproductive technology including in-vitro fertilisation and artificial insemination (see Parts 4 and 11 of the Act).[19] The Act further stipulates (in Part 4, Section 26) that the de facto female partner of a pregnant woman conceived via assisted reproductive technology is automatically considered as the second legal parent of that child for the purpose of state law, once the birth has occurred. A same-sex couple who utilises artificial insemination or in-vitro fertilisation treatment together (i.e. both parties present as a couple throughout the treatment) are able to have both names on the birth certificate once the child is born.

With respect to surrogacy rights, Western Australia (like all jurisdictions in Australia) bans commercial surrogacy and is also the only state within Australia to ban altruistic surrogacy for singles and same-sex couples,[20] the Surrogacy Act 2008 defining eligible surrogacy clients as "...2 people of opposite sexes who are married or in a de facto relationship with each other".[21]

Discrimination protections[edit]

Western Australia passed the state Equal Opportunity Act in 1984.[22] This legislation failed to include sexual orientation amongst a list of attributes designed to protect people from discrimination. This was rectified in 2002, when the Acts Amendment (Gay and Lesbian Law Reform) Act 2002 amended the 1984 Act to include sexual orientation, protecting LGB people in areas of employment, education, accommodation and the provision of goods, services and facilities, amongst a host of other aspects of public life.[23][24] These laws technically provide less protections for transgender Western Australians, who are classified in the Equal Opportunity Act and by the Equal Opportunity Commission of Western Australia as 'Gender History'; providing protections for those who have reassigned gender as certified under the Gender Reassignment Act 2000.[25]

Federal law protects LGBT and Intersex people in Western Australia in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[26]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1990 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 No
Hate crime laws include gender identity or expression No
Gay sex criminal records expunged No
Gay panic defence abolished Yes
Recognition in state law of same-sex couples as de facto couples 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/No (however bans gay male couples from surrogacy arrangements)
Same-sex marriages No (federal jurisdiction)
MSMs allowed to donate blood Yes (one year deferral - Australia-wide)

See also[edit]


External links[edit]