Sexual Orientation and Sex and/or Gender Identity

The following content draws upon, in part, the Joint Australian NGO Coalition's fact sheets prepared for the Universal Periodic Review.

A wide range of social research has found that Gay, Lesbian, Bisexual, Transgender and Intersex (GLBTI) Australians experience high levels of prejudice, stigma, exclusion, discrimination, abuse and hate-motivated assault. As a result, GLBTI Australians also experience higher-than-average levels of a range of mental and physical risk factors including suicide ideation, depression, and drug and alcohol abuse.

Discrimination

There is no Australian national law which comprehensively prohibits discrimination, harassment and vilification on the grounds of sexual orientation and gender identity. Some national laws governing workplace conditions provide some limited protection. The Australian Human Rights Commission can investigate and report on discrimination in employment but cannot enforce remedies if discrimination is proven. Australian states and territories provide varying degrees of protection. However, these laws do not protect people employed by or receiving goods and services from the Federal Government. Also, most state and territory laws allow private clubs or religious organisations to discriminate.

Parenting Laws

Most Australian states and territories fail to extend the equal rights, responsibilities and recognition to same-sex partners seeking to have, or currently raising, children. For example, the Northern Territory, Queensland, Victoria and South Australia do not allow same-sex partners to be assessed as potential adoptive parents. South Australia does not allow the same-sex partner of a woman who has given birth through artificial reproductive technologies to be presumed to be a co-parent. New South Wales, Tasmania, South Australia, Western Australia, the Northern Territory and the Federal Government do not recognise the surrogacy arrangements entered into by same-sex partners.

Marriage Equality

Same-sex partners cannot marry in Australia. Same-sex marriages entered into overseas are not recognised as marriages in most Australian jurisdictions. Australian citizens seeking to enter into a same-sex marriage in another country are denied the documentation required by some foreign governments before they can marry (for example, a Certificate of Non-Impediment to marriage).

Gender Identity

It is impossible for transgender people who have not undergone gender re-assignment surgery to have cardinal documents such as birth certificates or passports amended to reflect their gender identity. There are no laws prohibiting sex assignment surgery on intersex children prior to them having the capacity to give consent.

What the UN Human Rights Council recommended in the Universal Periodic Review

In January 2011 Australia was reviewed by the UN Human Rights Council during the Universal Periodic Review (or UPR) (a process whereby the human rights performance of all UN member states is reviewed by other states).  In June 2011 Australia provided its response to the 145 recommendations made by the Human Rights Council.

The Government has accepted over 90 per cent of the recommendations and has committed to incorporating the recommendations it has accepted into the National Human Rights Action Plan.

In relation to sexual and gender identity rights, the Human Rights Council made a number of relevant recommendations.  Australia has responded to these recommendations as set out in the following table.

Recommendation

Stance

Explanation

Continue to consolidate anti-discrimination laws protecting people on the grounds of sexual orientation and gender (recommendations 86.51, 86.66 and 86.68).

Already reflected

Australia accepts the recommendation on the basis it is reflected in existing laws or policies and Australia will continue to take steps to achieve relevant outcomes.

Equalise the recognition of same-sex relationships across and between states (recommendation 86.69).

Accepted

The Australian Government will continue to support a nationally consistent framework for relationship recognition that would need to be implemented by States and Territories.

Recognise same-sex marriage including recognising overseas marriages (recommendation 86.70).

Rejected

The Australian Government does not intend to amend the Marriage Act 1961. The Australian Government will continue to support a nationally consistent framework for relationship recognition that would need to be implemented by States and Territories.