LGBT rights in Western Australia

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 in March 1990. 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.

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achieved equalisation of consent ages in 2002 via the Acts Amendment (Gay and Lesbian Law Reform) Act 2002, which also repealed the laws with respect to promotion of homosexual behaviour in public policy and in educational institutions.

Historical convictions expungement proposal

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. Prior to the 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.

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

Recognition of gender identity and sex

Western Australia formerly required sterilization prior to approving a change in sex classification. This requirement was overturned when the High Court 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 WA gender recognition certificate.

Recognition of same-sex relationships

De facto unions are recognised in Western Australia. The Parliament passed a motion calling on the federal government to have a conscience vote on a same-sex marriage bill in September 2015. During the 2017 state election, Labor Party leader Mark McGowan stated the party would consider legislating for civil unions if Labor formed government after the election.

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 couples. Instead, state law provides same-sex couples with de facto unions, which have been recognised under Western Australian family law since 2002. 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. Same-sex couples in Western Australia and their relationships are also covered by federal law, ensuring that same-sex de facto partners are provided with same entitlements as married partners.

Relationship declaration programs

Relationship declaration programs are available in two places within Western Australia, namely the City of Vincent and the Town of Port Hedland.

Adoption and parenting rights

Same-sex couples are permitted to adopt in Western Australia as a result of the Acts Amendment (Gay and Lesbian Law Reform) Act 2002 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). 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, 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".

Discrimination protections

Western Australia passed the state Equal Opportunity Act in 1984. 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. 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.

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.

Schools and LGBTI students

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. However, in 2015 and 2016 the Safe Schools program faced criticism from social conservatives for allegedly indoctrinating children with "Marxist cultural relativism" and age-inappropriate sexuality and gender concepts in schools, while others criticised the Marxist political views of Roz Ward, a key figure in the program.

After the federal Turnbull Government announced that it would not renew funding for the program when it ran out in mid-2017, 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. 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. 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. 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.

Politics

The Western Australian branches of the Australian Labor Party and the Australian Greens are generally supportive of LGBTI rights, while the Liberal Party has tended to be more opposed. In contrast to the WA Liberals, the National Party of Western Australia are more socially progressive than their eastern National Party counterparts and largely support LGBTI rights, with future leader Brendon Grylls acknowledging the gay and lesbian community in his maiden speech and the WA Nationals' party conference passing a 2006 motion in favour of civil unions.

In 2002, Attorney-General Jim McGinty of the Australian Labor Party and Greens Western Australia Leader Giz Watson spearheaded the introduction of comprehensive pro-LGBTI law reform in Western Australia, 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.

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. 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. The Liberals did not form government until 2008, and did not change the LGBTI laws once in office. Before the defeat at the 2017 state election a number of Liberal politicans, including Joe Francis and Peter Abetz, were outspoken in their opposition to LGBT rights such as same-sex marriage and anti-LGBT bullying programs.

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 establish civil unions under state law.