LGBTQ rights in Western Australia

LGBTQ rights in Western Australia
Western Australia (Australia)
StatusAlways legal for women; legal for men since 23 March 1990[1]
Equal age of consent since 2002
Gender identityChange of sex marker on birth certificate does not require sex reassignment surgery
Discrimination protectionsYes, under state law since 2002 and federal law since 2013
Family rights
Recognition of relationshipsSame-sex marriage since 2017
De facto unions since 2002 (no civil unions or relationship register)
AdoptionYes, since 2002 (a ban on altruistic surrogacy for gay couples remains; bill pending to remove ban)

Lesbian, gay, bisexual and transgender (LGBTQ) rights in Western Australia have seen significant progress since the beginning of the 21st century, with male sex acts legal since 1990 and the state parliament passing comprehensive law reforms in 2002. The state was the first place within Australia to grant full adoption rights to same-sex couples in 2002. As of 2024, Western Australia is the only place within Australia to ban altrustic surrogacy for same-sex couples and also the only mainland state to still legally allows conversion therapy practices.

Laws regarding sexual activity

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 on 23 March 1990.[1][2] 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.[3]

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achieved equalisation of consent ages in 2002 via the Acts Amendment (Gay and Lesbian Law Reform) Act 2002, which also repealed the laws with respect to promotion of homosexual behaviour in public policy and in educational institutions.[4]

Historical convictions expungement

Western Australia was one of the last Australian jurisdictions to pass a law allowing individuals to apply to have historical homosexual convictions or charges expunged from their criminal records.

Following homosexual decriminalisation in 1990, attempts to reform the law only gained traction in the mid-2010s. 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.[5] Prior to the 2017 state election, both major parties in Western Australia discussed the prospect of expunging consensual homosexual sex crimes, with the opposition Labor Party pledging to implement such a scheme if elected and the incumbent Coalition government stating it would consider the proposal.[6][7] After comfortably winning the election, the McGowan Labor government introduced expungement legislation (the Historical Homosexual Convictions Expungement Bill 2017) to the Legislative Assembly on 1 November 2017.[8][9] The legislation requires those applying for an expunged record to satisfy a mandatory test to ensure their conduct constituted a historical homosexual offence. The consent of all parties and respective ages at the time is taken into account and family members of deceased victims are able to apply for an expungement on their behalf.[10][11] Labor leader and Premier, Mark McGowan, also issued a formal apology in Parliament to the LGBTIQ community in Western Australia for the anti-homosexuality laws of the past.[8][10] The bill passed the Assembly on 22 February 2018 and passed the Legislative Council with amendments attached later that year on 23 August.[9] The Legislative Assembly approved of the council's amendments on 11 September 2018 and the bill received royal assent on 18 September 2018.[9][12] The law went into effect on 15 October 2018.[13][14]

Expungement or spent conviction schemes are legally available within all other Australian jurisdictions.

Conversion therapy ban

No laws within Western Australia currently ban conversion therapy.[15] The government made an announcement formally that a bill would only be introduced, after the March 2025 state election. WA is the only mainland state to still legally allow these practices.

Transgender rights

See also: Transgender rights in Australia and LGBT rights in Australia § Transgender rights

Western Australian law recognises a transgender person's change of sex. Prior to 2012 the state required the person to undergo sterilisation before approving a change in sex classification. This requirement was overturned when the High Court of Australia ruled, in the 2012 case of AB v Western Australia, that two transgender men who had undergone mastectomies and hormone treatment did not need to undergo sterilisation to obtain a gender recognition certificate.[16] In August 2018, the government introduced legislation to the Parliament of Western Australia that repealed the requirement that one must be "unmarried" for a change of sex to registered on one's birth certificate.[17] The bill passed the lower house on 20 November 2018 and passed the upper house on 12 February 2019.[17] The bill received royal assent on 19 February 2019 and commenced on 19 March 2019.[18]

Transgender prison policy

In November 2020, it was reported that transgender prisoners can be housed according to their own gender identity for strict health and safety reasons under recently implemented policies – so long as they commit no sexual offences on their criminal record.[19][20]

Suicide of a 15 year old transgender teenager

In April 2021, a suicide of a 15 year old transgender teenager in Perth caused mass outrage within the Western Australia LGBTIQ+ community – that has called for archaic WA legislation regarding sex or gender on a birth certificate to be reformed immediately.[21][22]


Western Australia Supreme Court

In October 2021, in a legal first precedent within Australia a family completely lost custody of their own children by a court order - for continuing abusing their own transgender child.[23]

Abolishing the WA Gender Reassignment Board

In September 2024, a bill passed both chambers to formally abolish and repeal the WA Gender Reassignment Board. The bill allows male, female and nonbinary options on an individual's birth certificate and to change sex on a birth certificate requirement is "appropriate clinical treatment" sign off by a doctor, nurse or psychologist only once a year – no sexual reassignment surgery is required. The bill became an Act with royal assent by the Governor of Western Australia on 26th September 2024[24] and is expected to go into effect within 6 months. South Australia and the Northern Territory have similar legislation enacted.[25][26]

Intersex rights

Main article: Intersex rights in Australia

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 organizations and others.[27] The statement calls for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support.[27][28][29][30][31]

Recognition of same-sex relationships

De facto unions

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 or de facto couples. Labor Party leader Mark McGowan said the party would consider introducing civil unions during the 2017 state election, though this never eventuated following the national legalisation of same-sex marriage later that year (see below).[32] West Australian family law has provided same-sex and other couples with de facto unions since 2002.[33] 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.[34] Same-sex couples in Western Australia and their relationships are also covered by federal law,[35] ensuring that same-sex de facto partners are provided with most of the same entitlements as married partners.[36]

Relationship declaration programs

Relationship declaration programs have been introduced by two local governments in Western Australia, namely the City of Vincent[37] and the Town of Port Hedland.[38][39][40] The City of Vincent's scheme, introduced in 2012, was discontinued in 2018.[41] Port Hedland's scheme was adopted in 2015[42][43] and rescinded in 2021.[44]

Same-sex marriage

Same-sex marriage became legal in Western Australia, and in the rest of Australia, in December 2017, after the Federal Parliament passed a law legalising same-sex marriage.[45] Prior to this, in September 2015, the West Australian Parliament passed a motion calling on the federal parliament to have a conscience vote on same-sex marriage legislation.[46][47]

Adoption and parenting rights

Adoption

Same-sex couples are permitted to adopt in Western Australia[48] as a result of the Acts Amendment (Gay and Lesbian Law Reform) Act 2002[49] 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 April 2018, all Australian jurisdictions legally allow same-sex couples to adopt children.

Assisted reproduction

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).[49] 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.

Surrogacy

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,[50] 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".[51] The state government revealed that an independent review of the restriction, as well as other aspects of assisted reproduction legislation, would be undertaken in 2018.[52] In August 2018, a bill was introduced in the Parliament of Western Australia to allow altruistic surrogacy for male same-sex couples and single men.[53][54] The bill passed the Legislative Assembly on 9 October 2018.[53][55] The bill was considered by the Legislative Council over several sitting days in early 2019. In that time, conservative Liberal Party MLC Nick Goiran staged a marathon filibuster against the legislation. Goiran spoke continuously for over 20 hours of parliamentary time spread over several months, delaying further debate on the bill and saying he wished for other parliamentarians to consider a report on the issue released by the government the previous month.[56][57] Under the rules of the council, the only way to stop Goiran would be to remove the bill from the daily business agenda.[57] On 10 April 2019, the Council agreed to Goiran's motion to refer the bill to parliament's Legislation Committee.[58][59] The committee issued its report in late June.[60] Segments of the report argued the proposal could discriminate against women, due to the existing requirement for women to have medical reasons to access surrogacy, finding the only way to avoid this would be either by applying the same rule to men or removing the medical reasons requirement for women.[60][61] In December 2019, Health Minister Roger Cook revealed the government would consider amendments to the bill in response to the committee's findings.[61] The bill failed to pass the parliament prior to the 2021 election. On 18 August 2021 the McGowan Government tabled its response to the Allan Review of the Human Reproductive Technology Act 1991 and Surrogacy Act 2008.[62] The McGowan Government committed to improve access to altruistic surrogacy for same-sex couples, singles, transgender, and intersex people as recommended by Allan, and to introduce new legislation to Parliament during its current term of government.[63]

The surrogacy laws remained unaltered by the parliament and came under renewed scrutiny by media in 2024.[64][65] Associate Professor Sonia Allan, who conducted a review of the state's surrogacy laws in 2018, stated she was "extremely disappointed" by the government's inaction on the issue. Health Minister Amber-Jade Sanderson, whose Labor government commands majorities in both chambers of the parliament, stated the government was "absolutely committed to this legislation" and would "introduce a bill as soon as possible", though as of October 2024 no such legislation has been introduced to the parliament.[65]

Discrimination protections

In August 2022, it was formally announced that the Western Australian government is going to reform, update and overhaul the Equal Opportunity Act 1984 – to explicitly include both "gender identity and sex characteristics" and to also repeal the exemption, that legally allows LGBTIQ teachers and students being discriminated against within religious schools. Sexual orientation is already explicitly included since 2002. In April 2024, it was formally announced by the government that no bill would be introduced on reforming the WA Equal Opportunity Act – until after the March 2025 state election.[66][67][68][69]

Western Australia passed the state Equal Opportunity Act in 1984.[70] This legislation failed to include sexual orientation amongst a list of attributes designed to protect people from discrimination. This was changed 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.[71][72] 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.[73] In October 2018, the McGowan Labor government revealed it would submit the Equal Opportunity Act to a review of the state Law Reform Commission, the announcement coming after McGowan had said he was "personally uncomfortable" with religious schools discriminating against gay students and teachers.[74]

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.[75]

Schools and LGBTI students

See also: LGBT rights in Australia § School anti-bullying programs

The Safe Schools anti-LGBTI bullying program was rolled out in schools across the country under a federal initiative to combat anti-LGBTI school bullying, which research suggested was prevalent across Australian schools.[76] However, in 2015 and 2016 the Safe Schools program faced criticism from social conservatives for allegedly indoctrinating children with "Marxist cultural relativism"[76] and age-inappropriate sexuality and gender concepts in schools,[77] while others criticised the Marxist political views of Roz Ward, a key figure in the program.[76][78][79][80]

After the federal Turnbull government announced that it would not renew funding for the program when it ran out in mid-2017,[76] Western Australia's political parties proposed different approaches in the run-up to the 2017 election. The Liberal Party announced it would allow the program to lapse if retained government.[81] The Western Australian branch of the Australian Labor Party confirmed it would fully fund the program in Western Australia if it won office, while the Western Australian Greens support the continuation of the program.[81] The 2017 election resulted in victory for the Australian Labor Party led by Mark McGowan and the defeat of outspoken Safe Schools opponents Peter Abetz and Joe Francis, among others.[82][83][84] The election outcome was welcomed by LGBTI advocates, who also called on the incoming McGowan Government to encourage more Western Australian schools to adopt the program, which provides training resources for teachers.[82]

Margaret Court court case

In October 2020, Margaret Court a 1970s tennis legend and religious pastor sued the WA government and lotterywest and went to the WA equal opportunity commission – because they refused to fund or give money to her charity Victory Life Church in Perth to feed the homeless people, due to her "outdated or archaic biblical views on marriage".[85][86][87][88][89]

Politics

The Labor Party and Greens are generally supportive of LGBTI rights, while the Liberal Party has tended to be less so.[81] In contrast to the WA Liberals and their eastern National Party counterparts, the National Party of Western Australia is socially progressive and largely supports LGBTI rights, with former leader Brendon Grylls acknowledging the gay and lesbian community in his maiden speech and the WA National party conference passing a 2006 motion in favour of civil unions.[90][91]

In 2002, Attorney-General Jim McGinty of the Labor Party and Greens Western Australia Leader Giz Watson introduced a package of comprehensive LGBTI law reform, which included allowing same-sex adoption, parentage rights for lesbian couples with children, allowing same-sex couples to access the more cost-effective Family Court of Western Australia to resolve their disputes and equalising the age of consent at 16 years for both heterosexual and homosexual sex acts.[92] As a result, Western Australia became the first Australian state to allow LGBT adoption[93] and the first place in Australia where a same-sex couple adopted a stranger's child, which occurred in 2007.[94]

The 2002 McGinty-Watson reforms were strongly opposed by the Western Australian Liberals at the time, who were then led in opposition by Colin Barnett.[92] In their 2002 policy "Family First – Defining the Difference", the Liberals promised to repeal the reforms and raise the homosexual age of consent from 16 to 18 years of age.[92] The Liberals did not form government until 2008, and did not change the LGBTI laws once in office.[92] Before their defeat at the 2017 state election a number of Liberal politicians, including Joe Francis and Peter Abetz, were outspoken in their opposition to LGBT rights such as same-sex marriage and anti-LGBT bullying programs.[83][84]

At the 2017 election, the incoming McGowan ALP Government promised it would continue funding for the Safe Schools anti-bullying program, introduce a conviction expungement scheme to clear historical offences for legalised sexual conduct and (in the then-absence of same-sex marriage under federal law) consider establishing civil unions under state law.[82]

Christmas Island and the Cocos (Keeling) Islands

Laws from Western Australia also apply to the external territories of Christmas Island and the Cocos (Keeling) Islands, subject to change by the Australian government.[95]

In 2016, 75% of the Cocos (Keeling) Islands nominated Islam as their religion.[96]

Summary table

Same-sex sexual activity legal Yes (since 1990 for men; always for women)
Equal age of consent Yes (since 2002)
Anti-discrimination state laws for sexual orientation Yes (since 2002)
Anti-discrimination state laws for gender identity or expression Yes/No (protection for "gender history" only; since 2002)
Individual right to change sex on a birth certificate without any sex reassignment surgery Yes (legislation enacted in 2024 to implement a change of sex – yet to go into effect)[97]
Hate crime laws include sexual orientation No
Hate crime laws include gender identity or expression No
Laws against LGBT vilification No
Gay sex criminal records expunged Yes (since 2018)
Gay panic defence abolished Yes
Recognition in state law of same-sex couples as de facto couples Yes (since 2002)
Step adoption by same-sex couples Yes (since 2002)
Joint adoption by same-sex couples Yes (since 2002)
Automatic IVF/artificial insemination parenthood for female partners Yes
Access to IVF for lesbians Yes
Access to altruistic surrogacy for male same-sex couples No (only such ban in Australia; bill pending to remove ban)[53]
Conversion therapy officially banned No[98]
Same-sex marriages Yes (since 2017)
MSMs allowed to donate blood Yes/No (Since 2021 – federal policy 3-month deferral period)[99]

See also

References

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