Whilst in some respects South Australia has led the way in spearheading law reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people, in other respects, the state lags behind the rest of the country in its protection of LGBTIQ rights. South Australia was the first Australian state to decriminalise homosexual sexual activity and to introduce an equal age of consent for same sex and different sex couples. However, South Australia later fell behind in the area of relationship recognition and remains the only jurisdiction to retain the controversial ‘gay panic defence.’
South Australia decriminalised consensual homosexual activity in 1975. At the same time it provided for an equal age of consent for homosexual and heterosexual couples, which stands at 17.
South Australia was the first Australian jurisdiction to legislate a scheme under which people with historical convictions for consensual gay sex could apply to have these convictions removed from their record. This law passed in 2013. However, the scheme does not allow for true expungement, but only treats the convictions as ‘spent’. LGBTIQ rights activists have called for the state to legislate for actual expungement.
South Australia has allowed same-sex couples to enter into domestic partnerships agreements since 2007 and registered relationships since 2017.
62.7 of South Australians voted ‘yes’ in the 2017 postal vote on same-sex marriage.
Gay panic defence
The controversial ‘gay panic defense’ remains good law in South Australia. The defense allows a person charged with murder to validly argue in their defence that they were provoked by the deceased making an unwanted homosexual advance towards them.
The gay panic defence is part of the broader partial defence of provocation, which reduces a charge of murder to manslaughter if successfully raised. The partial defence of provocation is itself controversial, with many in the legal and broader community feeling that it reflects outdated attitudes. While there has been widespread support for abolishing the gay panic defence as a violation of LGBTIQ rights, a full review of the provocation defence has been thought more appropriate than the repeal of the gay panic defence in isolation. The law is currently being reviewed by the South Australian Law Reform Institute.
Adoption and parenting rights
Same-sex couples have been permitted to adopt in South Australia since 2017.
The Adoption Act 1988 originally allowed only different-sex couples to adopt, excluding single people and same-sex couples. This was amended following a conscience vote in 2016, allowing single people and gay couples to adopt.
Same-sex couples now have the same access to assisted reproductive treatments and altruistic surrogacy as other people in South Australia. However, prior to 2017, fertile single women and lesbians could not access reproductive treatments.
The South Australian Equal Opportunity Act 1984 prohibits discrimination based on sex, sexual orientation or gender identity. Complaints about discrimination in South Australia can be made to the South Australian Equal Opportunity Commission. The attributes of ‘gender identity’ and ‘sexual orientation’ were added to the legislation in 2016 to replace the outdated terms ‘chosen gender’ and ‘sexuality’.
LGBTIQ rights in South Australia are also protected by the federal Sex Discrimination Act, which prohibits discrimination on the basis of sexual orientation, gender identity and intersex status.
There are no South Australian laws prohibiting the vilification of a person based on sexual orientation or gender identity.
In 2016, South Australia became the first state to allow individuals to change the sex descriptor on their birth certificate without a requirement of having undergone sexual reassignment surgery or being divorced (if married prior to transitioning). A person under 18 requires judicial approval prior to registering a change of sex. A person over 18 is required only to have obtained a psychological assessment.
Intersex protections were added to the Equal Opportunity Act in 2017. South Australia is one of only three jurisdictions to specifically prohibit discrimination against intersex people (along with Tasmania and the ACT).
South Australian birth certificates and identification documents allow a person’s sex to be listed as ‘indeterminate’, ‘unspecified’ or ‘intersex’.
South Australia has not passed laws against the practice of conversion therapy, whereby a person’s sexual orientation is supposedly changed through psychological or spiritual therapy. The practice is widely believed to be harmful and ineffective and has been condemned by medical bodies.
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