: Reform of laws that discriminate...

Reform of laws that discriminate...

Kellie Toole
South Australia

... on the grounds of Sexual Orientation, Gender, Gender Identity and Intersex Status

In January 2015, the Attorney General invited the South Australian Law Reform Institute (‘SALRI’) to accept a reference to inquire into and report on South Australian laws that discriminate against individuals and families from the Lesbian, Gay, Bisexual, Trans, Intersex and Queer (‘LGBTIQ’) communities.

The Governor, His Excellency the Honourable Hieu Van Le AO, spoke at the opening of parliament in February 2015 on the need for the reference because ‘some individuals and families are not able to participate fully in our democracy because of who they are, whether it be lesbian, gay, bisexual and transgender. The strength of our society will be shaped by the extent to which we can guarantee access to these pillars of our democracy, education, health and justice, to all South Australians.’

SALRI accepted the reference and reported in September 2015.Over 140 pieces of legislation were identified as discriminating against individuals on the basis of sex or gender diversity, mostly by reinforcing the binary notion of sex (‘male’ and ‘female’) or gender (‘man’ or ‘woman’) or excluding members of the LGBTIQ communities by a specific or rigid definition of gender.

Community consultations and submissions clarified which laws were of most concern within LGBTIQ communities, and the following areas were identified as having the most impact on individuals and families:

  • the Births, Deaths and Marriages Registration Act 1996 and the Sexual Reassignment Act 1988 which regulate how a person’s sex is recognised under the law, particularly how it is recorded or changed on the Births Deaths and Marriages Register;
  • the Assisted Reproductive Treatment Act 1988, Family Relationships Act 1975 and Adoption Act 1988 which regulate parenting rights and the ability to start a family by determining who can access assisted reproductive treatment, adopt, enter into surrogacy arrangements and meet the legal definitions of ‘parents’;
  • the Equal Opportunity Act 1984 which prohibits discrimination on the grounds of certain attributes, including marital status, sexuality and ‘chosen gender’, but the terms ‘sexuality’ and ‘chosen gender’, have been described as outdated or inappropriate compared to alternatives like ‘sexual orientation’, ‘gender identity’ and ‘intersex status’ which are included in the Sex Discrimination Act 1984 (Cth). It also contains ‘exceptions’ to otherwise unlawful discrimination that enact discrimination on the grounds of sexual orientation, gender identity and intersex status.
  • laws relating to criminal law, in particular the partial defence of provocation to murder that allows defendants to argue the ‘gay panic’ defence, and the treatment of past convictions for now repealed offences that criminalised homosexual acts.
  • the Criminal Law (Forensic Procedures) Act 2007 and the Correctional Services Act 1982 that contain specific provisions relating to intrusive forensic procedures of a ‘female’ and may discriminate against gender diverse or intersex people who identify as female but may not be legally recognised as such.

SALRI has recommended reforms in these areas, among others, to reduce discrimination against and stigma of LGBTIQ individuals, families and communities, and to remove barriers to their full inclusion and participation in the community. The recommendations will now be considered by Parliament.

The full SALRI report is available at — https://law.adelaide.edu.au/research/law-reform-institute/documents/audit_report_lgbtiq_sept_2015.pdf.

KELLIE TOOLE teaches law at the University of Adelaide

(2015) 40(4) AltLJ 286
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