LGBT rights in the Australian Capital Territory
The Australian Capital Territory (ACT) is one of Australia's leading jurisdictions with respect to the rights of lesbian, gay, bisexual and transgender (LGBT) people. The ACT has made a number of reforms to territory law designed to prevent discrimination of LGBT people; it was the only state or territory jurisdiction in Australia to pass a law for same-sex marriage, which was later overturned by the High Court of Australia. From 4 March 2021, the Australian Capital Territory will officially join with Queensland since 20 August 2020 as the only jurisdictions within Australia to legally ban conversion therapy on children.[1][2][3] The ACT's laws also apply to the smaller Jervis Bay Territory.
 | |
| Status | Always legal for women; legal for men since 1976 |
| Gender identity | Change of sex marker on birth certificate does not require sex reassignment surgery |
| Discrimination protections | Yes (both federal and territory law) |
| Family rights | |
| Recognition of relationships | Same-sex marriage since 2017; Unregistered cohabitation recognised as "domestic relationship" since 1994 |
| Adoption | Full LGBT adoption rights since 2004 |
Same-sex marriage has been legal in the territory since December 2017, following the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 in the Australian Parliament. The 2017 Australian Marriage Law Postal Survey, designed to gauge public support for same-sex marriage in Australia, returned a 74% "Yes" response in the ACT, the highest state or territory "Yes" response in the country. In November 2019, it was reported by the ABC media that Canberra has since been home to the most same-sex couple households (on a per capita basis) - not Sydney which defied Australian community expectations.[4]
Laws regarding same-sex sexual activity
In May 1975, the now-defunct Australian Capital Territory Advisory Council passed an ordinance which decriminalised some aspects of male-to-male sexual activity and made the age of consent for homosexual sex to be 18, rather than the 16 years of age for heterosexual sex. This resulted in the Federal Government implementing the Law Reform (Sexual Behaviour) Ordinance 1976.[5][6][7] It was not until December 1985 that the age of consent was equalised, with the enactment of the Crimes (Amendment) Ordinance 1985.[8]
Historical conviction expungement
Since November 2015, people who have been previously convicted of consensual homosexual sexual conduct prior to its decriminalisation in 1976 can apply to have their convictions erased permanently from their records.[9][10] To that effect, the Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015 passed the Legislative Assembly on 29 October 2015 and went into effect on 7 November 2015.[11]
Recognition of same-sex relationships
Domestic Relationships Act 1994
The Australian Capital Territory was the first jurisdiction in Australia to legally recognise the unions of same-sex couples, in the form of the Domestic Relationships Act 1994.[12] The Act defined a domestic relationship in much the same way common law marriages are treated; a personal relationship between 2 adults (other than a married couple) in which one [or both] provides personal or financial commitment and support of a domestic nature for the material benefit of the other.[13] The Act also provided for distribution of property and finances in the event of a separation, and inheritance in the event of death.
Civil Partnerships Act 2008
In May 2008, after several attempts to amend the scheme, ACT Attorney-General Simon Corbell announced that the territory had abandoned its civil partnerships legislation, eliminated any ceremonial aspects, and settled for a system of relationship registers virtually identical to the ones operating in Tasmania and Victoria. The Commonwealth Government had not compromised at any point during negotiations.[14][15] The legislation passed the ACT Legislative Assembly on 8 May 2008, giving same-sex couples increased access to superannuation, taxation and social security law reforms. While legislative ceremonies were removed from the bill, an administrative ceremony may be performed by a representative the ACT Register-General. The Civil Partnerships Act 2008 entered into force on 19 May 2008.[16][17][18]
The Act was amended in 2009 to allow for same-sex couples to participate in an official partnership ceremony. This made the ACT the first territory/state in the country to legalise civil partnerships ceremonies for same-sex couples.[19] The amended legislation required that same-sex couples register their intention to hold a ceremony and opposite-sex couples be barred from entering into a civil partnership ceremony.[20] The Act was subsequently repealed as a result of the territory's implementation of the Civil Unions Act 2012.[21]
Although the Act was repealed, civil partnerships have not been terminated. Such partnerships are now regulated by the Domestic Relationships Act 1994 (specifically part 4A of the Act), and couples, whether same-sex or opposite-sex, may still enter into such partnerships if they so choose.[22]
Civil Unions Act 2012
In August 2012, a civil union bill passed after legal advice demonstrated that the Federal Government had removed its ability to legislate for territorial and state same-sex marriage after it defined marriage as only between man and woman in the Marriage Amendment Act 2004. The bill granted many of the same rights to same-sex couples as people married under the Marriage Act 1961.[23] The Act was not challenged by the Gillard Government. The Act was to be repealed upon commencement of the Marriage Equality (Same Sex) Act 2013, which (if not struck down by the High Court), would have legalised same-sex marriage in the territory.[24] Due to the High Court's ruling striking down the ACT's same-sex marriage law as invalid, the repeal of the Civil Unions Act 2012 was of no effect and civil unions could take place in the ACT until 2017.[25] As of 2017, forming a new civil union is not possible as section 7 of the Civil Union Act 2012 requires that potential couples be unable to marry under the Marriage Act 1961.[26] When same-sex marriage was legalised, it became legally impossible to form a civil union, though existing ones remain valid and entering into a domestic relationship remains an option.[27]
The law required couples to enter into a civil union ceremony (also known as a "declaration") in the presence of at least a civil union celebrant and a witness.[25]
Same-sex marriage
The ACT was the only state or territory jurisdiction in Australia to legalise same-sex marriage before it was made legal nationwide. This occurred in 2013 when the Legislative Assembly passed the Marriage Equality (Same Sex) Act 2013, with the Act going into effect and enabling same-sex couples to marry from 7 December 2013.[28] However, the full bench of the High Court of Australia heard the Commonwealth Government's challenge to the ACT marriage laws on 3 December.[29] On 12 December, the court ruled that the territory was not permitted to legalise same-sex marriage, as under the federal Constitution only the federal Parliament can legislate with regard to marriage.[30]
Same-sex marriage became legal again in the Australian Capital Territory in December 2017, when the federal Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 and thereby legalised same-sex marriage in the whole country.[31]
Adoption and parenting rights
The Adoption Act 1993,[32] as amended in 2004, states that "...an adoption order shall not be made otherwise than in favour of 2 people jointly (emphasis added), being a couple...married or not, (emphasis added), have lived together in a domestic partnership for a period of not less than 3 years", ensuring that same-sex couples can jointly adopt a child in the ACT.[33]
Under Part 15.4 of the Children and Young People Act 2008,[34] there is no prohibition to fostering children by a gay or lesbian person or couple. In November 2003, legislation known as the Parentage Act 2004 passed into law by the ACT Legislative Assembly ensured that the partners of lesbians who conceive children through IVF were recognised as legal parents.[35][36]
Assisted reproductive technology and in vitro fertilisation are legal for male and female same-sex couples in the ACT. In 2000, the ACT became the first state or territory to allow the genetic parents of a child born through surrogacy to become its legal parents without going through an adoption process.[37]
Lesbian couple sued IVF provider
In September 2007, it was widely reported by the media that caused huge controversy within the Australian community that a female same-sex couple from Canberra legally sued an IVF provider within Sydney - only because they have two embryos inserted, instead of just one causing the birth of twins and also counter sued for the full cost of $400,000 raising the children until they turn 21.[38]
In July 2008, the female same-sex couple that sued the IVF provider lost the lawsuit within the ACT Supreme Court.[39]
Discrimination protections
The Australian Capital Territory Discrimination Act 1991 covers grounds for unlawful discrimination with respect to sex, intersex status, HIV/AIDS status, sexuality and gender identity, among a host of other attributes.[40] The ACT Human Rights Commission administers this Act and the Human Rights Act 2004,[41] with a major aspect of its role being to handle complaints of discrimination, sexual harassment, vilification (on the grounds of race, sexuality, gender identity or HIV/AIDS status) or victimisation.[42] Areas covered with respect to anti-discrimination protections include but are not limited to: work, employment agencies, services or facilities, accommodation, clubs, professional or trade organisations.
On 8 June 2016, the ACT Government introduced a bill which would expand the number of grounds upon which it is illegal to vilify or discriminate against someone in the ACT. Among a number of additions, the bill included "intersex status" and "altered sex" as protected traits.[43] The bill unanimously passed the ACT Legislative Assembly on 4 August 2016, becoming the Discrimination Amendment Act 2016. Most parts of the new law went into effect on 24 August 2016, the day after notification.[44][45] The remaining parts on the law come into effect on 3 April 2017.[46]
Transgender rights
Transgender and intersex people are permitted to change the sex listed on their birth certificate, under the provisions of the Births, Deaths and Marriages Registration Amendment Act 2014. The Act removed the requirement for such people to undergo sex reassignment surgery before being allowed to alter their sex on official documents. ACT law allows someone to identify as male, female or "X", following a doctor or psychologist certification indicating they have received what the Act terms "appropriate clinical treatment".[47][48] Parents can also have their child's birth certificate changed if they believe it to be in the best interests of the child, though the child must have received "appropriate clinical treatment".[47]
Federal law also protects LGBTI people in the Australian Capital Territory in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[49]
Intersex rights
In June 2016, Organisation Intersex International Australia pointed to contradictory statements by the ACT and other Australian governments, suggesting that the dignity and rights of LGBT and intersex people are recognized while, at the same time, harmful practices on intersex children continue.[50]
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.[51] The statement calls for legal reform, including the criminalization of deferrable intersex medical interventions on children, and improved access to peer support. It also calls for an end to legal classification of sex and stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".[51][52][53][54][55]
As of 1 August 2017, the Australian Capital Territory is one of three states and territories to include protections specific to intersex people in anti-discrimination law.[56][57]
Besides male and female, Australian Capital Territory birth certificates and identification documents are available with an "X" sex descriptor.[47]
Conversion therapy
ACT Health Minister Meegan Fitzharris said "The ACT government will ban gay conversion therapy. It is abhorrent and completely inconsistent with the inclusive values of Canberrans." In August 2020, a bill was formally introduced by the Labor-Green ACT government to ban conversion therapy. In the same month, the bill passed the ACT Legislative Assembly and will go into effect 6 months after notification. The ‘'Sexuality and Gender Identity Conversion Practices Bill 2020'’ passed 14 to 11 with the Labor and Green parties in favour and Liberals opposing it.[58][59][60][61][62] The ACT law on conversion therapy provides for both criminal and civil remedies against people who practice conversion therapy. Practicing conversion therapy on protected individuals could result in up to a year in jail, up to $24,000 in criminal fines, or civil redress provided by the ACT Civil and Administrative Tribunal. The bill was amended shortly before it was passed at the request of religious groups and ACT opposition leader Alistair Coe who feared the broad definition of conversion therapy would allow children to sue their parents.[63][64] The ACT law banning conversion therapy will go into effect from 4 March 2021.[65]
4 Points to make about the ACT conversion therapy bill:
- (1) It also explicitly bans religious organizations practicing conversion therapy, not just health organizations.
- (2) It also makes it an offense to take an individual out of the Australian Capital Territory for the purposes of conversion therapy.
- (3) The penalty is only a maximum of 1 year under the bill.
- (4) It also has extrajudicial and extra-jurisdiction capacity (meaning an Australian Capital Territory resident can also face courts within that jurisdiction, if practiced within outside of the Australian Capital Territory).
Summary table
| Same-sex sexual activity legal |  (Since 1976 for men; always legal for women) |
| Equal age of consent | (Since 1985) |
| Anti-discrimination territory laws for sexual orientation | (Since 1991) |
| Anti-discrimination territory laws for gender identity or expression | (Since 1991) |
| Hate crime laws include sexual orientation | |
| Hate crime laws include gender identity or expression | |
| Laws against LGBT vilification | |
| Same-sex marriage | (Since 2017) |
| Recognition in territory law of same-sex couples as domestic partners | (Since 1994) |
| Stepchild adoption by same-sex couples | (Since 2004) |
| Joint adoption by same-sex couples | (Since 2004) |
| Gay sex criminal records expunged | (Since 2015) |
| Gay panic defence abolished | (Since 2004) |
| Automatic IVF/artificial insemination parenthood for female partners | (Since 2000) |
| Access to IVF for lesbians | (Since 2003) |
| Conversion therapy on minors outlawed | (Effective from 4 March 2021)[66][67][68] |
| Right to change legal gender without sex reassignment surgery | (Since 2014) |
| MSMs allowed to donate blood | / (Since 2021 - federal policy 3-month deferral period)[69] |
See also
References
- Homosexual law reform in Australian States and Territories
- Law Reform (Sexual Behaviour) Ordinance 1976 (repealed)
- AN ORDINANCE To Reform the Law of the Territory relating to Sexual Behaviour
- Crimes (Amendment) Act (No 5) 1985 (repealed)
- "Explanatory Statement: Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Bill 2015" (PDF). Australian Capital Territory Legislative Assembly.
- Clare Sibthorpe (29 October 2015). "Homosexual acts can soon be scrapped from criminal records in the ACT". The Canberra Times. Fairfax Media.
- "Details of the Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Bill 2015". ACT Legislation Register.
- Domestic Relationships Act 1994
- Act Explanatory Memorandum
- Maley, Paul; Ryan, Siobhain (5 May 2008). "ACT made to axe gay unions". The Australian. Archived from the original on 21 October 2009. Retrieved 5 May 2008.
- Smiles, Sarah (5 May 2008). "Federal veto forces ACT backdown on gay unions". The Age. Melbourne. Retrieved 5 May 2008.
- "Watered down same-sex laws pass in ACT". The Sydney Morning Herald. 9 May 2008. Archived from the original on 11 May 2008. Retrieved 9 May 2008.
- "Civil Partnerships Act 2008". ACT Government. Retrieved 20 May 2008.
- "ACT recognises same sex couples". The Age. Melbourne. 20 May 2008. Retrieved 20 May 2008.
- Green, Jessica (11 November 2009). "Australian territory legalises gay civil partnership ceremonies". Pink News. Retrieved 18 November 2009.
- "ACT win fight on gay wedding laws". The Advertiser. 26 November 2009. Retrieved 30 November 2009.
- Civil Partnerships Amendment Act 2008 (repealed)
- "Domestic Relationships Act 1994" (PDF). legislation.act.gov.au.
- "Assembly passes civil unions reforms".
- Civil Unions Act 2012
- "Civil Unions". ACT Government: Justice and Community Safety Division. 25 February 2014. Retrieved 24 June 2014.
- Civil Unions Act 2012, retrieved 27 February 2019
- "Civil union registration - frequently asked questions". Access Canberra. ACT Government. 11 December 2018. Archived from the original on 27 February 2019.
- First same-sex marriages in Canberra (ABC News)
- December date set for Aussie high court gay marriage challenge
- Gay couples given five-day window to wed after High Court reserves decision
- "Same-sex marriage bill passes House of Representatives, paving way for first gay weddings". ABC News. 7 December 2017.
- Adoption Act 1993
- GayLawNet - ACT
- Children and Young People Act 2008
- Parenting milestone in the ACT
- Parentage Act 2004
- ACT approves surrogacy bill
- Guide to Australia's anti-discrimination laws: ACT
- Human Rights Act 2004
- ACT Human Rights Commission Archived 11 October 2013 at the Wayback Machine
- Kirsten Lawson (3 August 2016). "Shane Rattenbury moves to outlaw vilification on grounds of religion". The Canberra Times.
- Kirsten Lawson (4 August 2016). "ACT parliament passes religious vilification laws". The Canberra Times.
- ACT Legislation Register: Discrimination Amendment Bill 2016
- ACT Legislation Register
- "Transgender people will be able to alter birth certificates". The Canberra Times. 17 March 2014.
- "Explanatory Memorandum for the Births, Deaths and Marriages Registration Amendment Bill 2013" (PDF). Legislation.act.gov.au. 31 December 2013.
- Australian Human Rights Commission
- "Submission: list of issues for Australia's Convention Against Torture review". Organisation Intersex International Australia. 28 June 2016.
- Androgen Insensitivity Support Syndrome Support Group Australia; Intersex Trust Aotearoa New Zealand; Organisation Intersex International Australia; Black, Eve; Bond, Kylie; Briffa, Tony; Carpenter, Morgan; Cody, Candice; David, Alex; Driver, Betsy; Hannaford, Carolyn; Harlow, Eileen; Hart, Bonnie; Hart, Phoebe; Leckey, Delia; Lum, Steph; Mitchell, Mani Bruce; Nyhuis, Elise; O'Callaghan, Bronwyn; Perrin, Sandra; Smith, Cody; Williams, Trace; Yang, Imogen; Yovanovic, Georgie (March 2017), Darlington Statement, archived from the original on 21 March 2017, retrieved 21 March 2017
- Copland, Simon (20 March 2017). "Intersex people have called for action. It's time to listen". Special Broadcasting Service. Retrieved 21 March 2017.
- Jones, Jess (10 March 2017). "Intersex activists in Australia and New Zealand publish statement of priorities". Star Observer. Retrieved 21 March 2017.
- Power, Shannon (13 March 2017). "Intersex advocates pull no punches in historic statement". Gay Star News. Retrieved 21 March 2017.
- Sainty, Lane (13 March 2017). "These Groups Want Unnecessary Surgery on Intersex Infants To Be Made A Crime". BuzzFeed Australia. Retrieved 21 March 2017.
- "Australian state recognizes same-sex marriages, introduce intersex anti-discrimination measures". Gay Star News. 1 August 2017. Archived from the original on 2 August 2017.
- "South Australia introduces relationship recognition for same-sex couples and anti-discrimination protections for intersex people". Human Rights Law Centre. 1 August 2017. Archived from the original on 2 August 2017.