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LGBTIQ Rights (WA)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people living in Western Australia are protected from discrimination at the federal level by the Sex Discrimination Act. Many LGBTIQ rights are also protected under Western Australian law after a suite of reforms were passed in 2002. However, LGBTIQ rights activists are calling for WA laws to be reformed to more comprehensively protect the rights of this community.

Sexual activity

Western Australia decriminalised consensual homosexual sex in 1990 with the Law Reform (Decriminalisation of Sodomy) Act. However, under that act, the age of consent with respect to homosexual acts was 21, whilst the age of consent for heterosexual acts stood at 16. The age of consent was equalised in Western Australia in 2002.

The Western Australian parliament passed a law allowing individuals with historical convictions for consensual gay sex to have these convictions expunged. WA was one of the last Australian jurisdictions to pass such a law. The state parliament also extended a formal apology to the LGBTIQ community for the anti-homosexuality laws of the past.

Gender recognition

A person in Western Australia who has undergone sexual reassignment can have their gender legally recognised by obtaining a Recognition Certificate. The guardian of a child who has undergone sexual reassignment can apply for a Recognition Certificate for a Child. Applications are made to the Gender Reassignment Board. If an application for a Recognition Certificate is unsuccessful, the decision can be reviewed by the State Administrative Tribunal.

Once a Recognition Certificate has been obtained, the person can apply for a new birth certificate from the Registry of Births Deaths and Marriages.

Discrimination

The Western Australian Equal Opportunity Act has been amended to include sexual orientation as a prescribed attribute, protecting lesbian, gay and bisexual people from discrimination in employment, education, accommodation and the provision of goods and services. These laws do not protect transgender people unless they have been reassigned gender under the Gender Reassignment Act 2000, in which case discrimination is prohibited on the basis of ‘gender history’. Discrimination against intersex people is not prohibited.

A person in WA who experiences discrimination under state law can make a complaint to the WA Equal Opportunity Commission. Federal law also protects LGBTIQ people in Western Australia as gender identity and sexual orientation are prescribed attributes under the Sex Discrimination Act. A person who experiences discrimination can make a complaint to the Australian Human Rights Commission.

Adoption and parenting rights

Western Australia was the first state to grant adoption rights to same-sex couples. WA law also allows for same-sex step-parent adoptions.

While commercial surrogacy is against the law in all states and territories, Western Australia is the only state to ban altruistic surrogacy for singles and same-sex couples.

Same-sex couples in Western Australia have access to assisted reproductive technology and the de facto female partner of a woman who undergoes assisted reproductive therapy is automatically the second legal parent of the child conceived. When a same-sex couple undergoes assisted reproductive therapy together, they are able to have both names on the birth certificate.

Intersex rights

Intersex groups have called for laws to be passed protecting the right of intersex people not to be subjected to deferrable medical interventions as infants, and for an end to the legal classification of sex. No such laws exist in Western Australia at present.

LGBTIQ rights that are not protected

LGBTIQ rights groups have criticised the Western Australian government for failing to legislate to protect the rights of gay and gender diverse people fully. Western Australia does not currently have laws in place protecting LGBTIQ rights in the following areas:

  • Laws prohibiting conversion therapy on minors;
  • Laws prohibiting the vilification of individuals or groups on the basis of their sexual orientation or gender identity;
  • Prohibition of deferrable intersex medical interventions being carried out on an intersex child without consent;
  • Altruistic surrogacy for same-sex couples (though a bill that would allow for this is currently awaiting consideration by the Legislative council);
  • Discrimination on the basis of gender (as opposed to gender history);

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