LGBT rights in Tasmania

LGBT rights in Tasmania
Tasmania (Australia)
Same-sex sexual activity legal?	Always legal for women; legal for men under state law since 1997
Gender identity/expression	Change of sex requires divorce if married and sexual reassignment surgery
Discrimination protections	Yes (under state and federal law)
Family rights
Recognition of relationships	Registered relationships since 2003; same-sex marriages performed in other jurisdictions recognised since 2010
Restrictions:	Same-sex marriage prohibited under federal law since 2004; see History of same-sex marriage in Australia
Adoption	Yes, since 2013

Lesbian, gay, bisexual and transgender (LGBT) people in the Australian state of Tasmania have most of the same rights as other Tasmanians under state law, but Australian federal law reserves marriage to to mixed-sex couples. Initially dubbed "Bigots Island" by international media due to intense social and political hostility to LGBT rights up until the late 1990s,^[1] the state has subsequently been recognised for LGBT law reforms that have been described by activists such as Rodney Croome as among the most extensive and noteworthy in the world.^[2][3] Tasmania had maintained the harshest penalties in the Western world for homosexual activity until 1997 when it was the last Australian jurisdiction to decriminalise homosexuality following a complaint to the United Nations Human Rights Committee, the passage of federal sexual privacy legislation and a High Court challenge to the state anti-homosexuality law.^[4] Following decriminalisation, social and political attitudes in the state rapidly shifted in favour of LGBT rights above the national average to the point where strong anti-LGBT discrimination laws were introduced in 1999^[5] and Tasmania became the first Australian state to introduce a relationship registration scheme that included same-sex couples in 2003.^[1][4]

Laws regarding sexual activity

Criminalisation and persecution

Sodomy was originally outlawed throughout the island from the time of British settlement. The law was retained post federation as in all other Australian jurisdictions. Tasmania was the last British Empire outpost to carry out the death penalty for sodomy in 1867.^[4] In the subsequent hundred years Tasmania had the highest rate of imprisonment for private consenting male sex anywhere in the world.^[6] In the late 1980s Premier Robin Gray stated that homosexuals were unwelcome in Tasmania and police recorded the vehicle registration plates of people attending gay community meetings.^[5] A gay rights stall set up in Salamanca Market in 1988 was repeatedly shut down by Hobart City Council with organisers arrested by police.^[3][4] By the early 1990s the state had the harshest penalty for gay sex in the Western world at 21 years imprisonment.^[4] During the 1980s and early 1990s six attempts at decriminalisation were emphatically rejected by the Tasmanian Legislative Council,^[3] with politician Robert Archer calling for homosexuals to be "tracked down and wiped out" by police.^[4] Social and political opinion remained sharply against LGBT rights until the late 1990s.^[5] Many LGBTI Tasmanians responded to the hostile sentiment by either relocating to the mainland Australian cities of Sydney or Melbourne, living in the closet or committing suicide.^[4]

Toonen UNHRC complaint

The Tasmanian Parliament's repeated refusal to pass laws decriminalising private same-sex sexual acts^[7] resulted in local resident Nicholas Toonen bringing a human rights complaint to the United Nations Human Rights Committee, which ruled in Toonen's favour. The Committee noted that "the criminalisation of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV," further noting that "The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection."^[8] Gay activists and Amnesty International also mounted a campaign in favour of reform including demonstrations in the state and elsewhere, holding meetings between LGBTI Tasmanians and community groups across the state and gay men self-reporting their then-illegal consensual activities to police to illustrate that the laws were unenforceable, given that police would not prosecute them on the basis that it was not in the public interest.^[4][5]

Decriminalisation

In response to the Tasmanian Parliament’s refusal to repeal the offending laws, the Federal government passed the Human Rights (Sexual Conduct) Act 1994, with section 4 legalising sexual activity between consenting adults throughout Australia and prohibiting the making of laws that arbitrarily interfere with the sexual conduct of adults in private.^[9] In 1997 in the case of Croome v Tasmania, Toonen's then-partner Rodney Croome applied to the High Court of Australia for a ruling as to whether the Tasmanian laws were inconsistent with the Federal Human Rights (Sexual Conduct) Act.^[4] The Tasmanian Government repealed the relevant Criminal Code provisions after failing in its attempts to have the matter struck out.^[10] As a result, on 1 May 1997 that Tasmania repealed its anti-homosexuality laws.^[11][4] The age of consent in Tasmania is 17 years and is equal for both heterosexual forms of sex and homosexual forms of sex.^[12]

Expungement proposal

In December 2015, the Tasmanian Liberal Government announced it would introduce legislation in the Tasmanian Parliament which would expunge historic criminal records for consensual homosexual sexual activity. Individuals charged with offences pertaining to homosexual sexual conduct prior to its decriminalisation in 1997 will be able to submit an application with the state's Secretary of the Department of Justice to have such charges removed from their criminal records.^[13] If passed by the Parliament in 2016, Tasmania would join four other Australian states and territories (New South Wales, South Australia, Victoria and the Australian Capital Territory) in creating such an expungement scheme.

Recognition of same-sex relationships

Tasmania's Relationships Act 2003 provides for registration and recognition of a type of registered partnership in two distinct categories: Significant Relationships and Caring Relationships. The same Act also amended 73 pieces of legislation to provide registered partners with nearly all of the rights offered to married couples within the state. Furthermore, since July 2009, these relationships are recognised at federal level, providing couples with almost all of the federal rights and benefits of marriage. The legislation came into effect on 1 January 2004. In September 2010, the Parliament of Tasmania approved legislation to recognise same-sex unions performed outside Tasmania as significant relationships.^{[14][15][16][17]}

Significant and caring relationships

Both same-sex and opposite-sex couples can register a Significant Relationship if both are unrelated, unmarried adults living in Tasmania. Tasmania introduced the scheme in 2003, becoming the first state in Australia to establish a relationship registration scheme that was open to all couples.^[1]

Likewise, two adults residing in Tasmania, related or not, can register a Caring Relationship if one provides the other with domestic support and personal care. The parties cannot be married to each other, cannot be in an existing significant or caring relationship, and neither can be receiving payment for the care of the other either from employment or government departments.

Both types of relationships provide some rights in the following areas:^[18]

• Superannuation (pension/retirement benefits)
• Taxation
• Insurance
• Health Care
• Hospital Visitation
• Wills
• Property Division
• Employment Conditions (such as parenting and bereavement leave)

Applications for Significant or Caring Relationships can be registered in person or by mail by filing an application for a Deed of Relationship with the Tasmanian Registry of Births, Deaths and Marriages in Hobart.

Recognition from other jurisdictions

Since being elected in 2007, the then current Prime Minister, Kevin Rudd, had been encouraging all states to create relationship registers identical to Tasmania's model in order to create nationwide uniformity and consistent rights, while at the same time not supporting anything that appears too similar to marriage. The following jurisdictions currently recognise Tasmanian registered partnerships since 2012: ACT, NSW, QLD & VIC

The Australian Commonwealth Government also recognises a Tasmanian registered partnership as a "de facto relationship" under federal law. De facto couples, whether same-sex or opposite-sex, are entitled to nearly all of the federal rights of marriage since 1 July 2009.

In September 2010, the Tasmanian parliament passed legislation to recognise out-of-state same-sex unions as a significant relationships.^{[14][15][16][17]} In November 2014, New South Wales became the second state in Australia (after Tasmania) to recognise international same-sex marriages within the NSW relationship register.^[19]

Attempts at legalising same-sex marriage

In August 2012 Tasmanian premier Lara Giddings announced that Tasmania would pass new laws allowing same-sex couples to marry.^[20] However, although the same-sex marriage bill passed 13-11 in the lower house, the Legislative Council rejected the bill 6-8 on 27 September 2012.^[21] In December 2013, the Australian Capital Territory's Same Sex Marriage legislation was declared unconstitutional by the High Court of Australia due to inconsistency with the federal Marriage Act 1961. This may mean that the state parliaments do not have the legal capacity to legislate for same-sex marriage even if they wanted to.^[22] In November 2015, the lower house of Parliament passed a mostly bipartisan motion calling on the federal parliament to legalise same-sex marriage nationwide.^[23]

Marriage equality motion conscience vote

On November 19, 2015, the lower house of the Parliament of Tasmania, passed a motion by a vote of 15-9, calling on the federal government, to pass the Marriage Equality Bill 2015, based on a conscience vote.^{[24][25][26][27]} Both Western Australia and New South Wales also passed a similar motion. On August 9, 2016 the 15 member upper house of Tasmania (of mostly Independents) also passed a motion in favour of same-sex marriages.^[28] The vote was 8-5.^[29]

Motion wording:

1. Notes Members of the Tasmanian Legislative Assembly and community hold various views on the issue of marriage equality 2. Wishes our federal colleagues a respectful debate that is tolerant of all views 3. Notes the importance of MPs being free to express their own view and the views of their electorates on this issue

Adoption, surrogacy and parenting rights

Same-sex couples can be assessed to be adoptive parents of children relinquished by other people (this is known as the full joint adoption process). However, they may adopt their partner's child or children they already care for in some circumstances.^[30]

Under the Status of Children Act 1974 (section 10C) ^[31] same-sex partners of women who give birth to children conceived through sperm donation, IVF or other artificial reproductive technology will be presumed to be the child's other parent or co-mother in the same way as male partners of heterosexual women since 1.1.2004 (when the Relationships Act 2003 ^[32] commenced). Lesbian co-mothers who went under IVF can have both female names on the birth cirtificate so they can access the same rights and duties for their children (such as medical or hospital forms, education processes, access to entitlements, etc.). The legislation on parentage from IVF is retrospective (meaning the laws apply for co-mothers even before the law went into effect) as currently in the rest of Australia at a state, territory and federal level.

Also under the Adoption Act 1988 (section 29) ^[33] for a birth-mother's same-sex partner to adopt any children she has through fertility treatment under the stepchild adoption provision.^[30]

In 2012, Tasmania passed two pieces of legislation to legally allow altruistic surrogacy. The two laws are called the Surrogacy Act No 34 and the Surrogacy (Consequential Amendments) Act No 31^[34][35] Proposed altruistic surrogacy legislation was drafted and passed by both houses of the Tasmanian parliament - only after a review of the Surrogacy Contracts Act 1993 No 4^[36][37] and after an ongoing community consultation process. Under the altruistic surrogacy legislation, the surrogate must be at least 25 years old and it cannot be her first pregnancy. The new altruistic surrogacy laws went into effect on 1 May 2013.^[34]

In 2013, Tasmania became the fourth jurisdiction in Australia to allow same-sex couples full joint adoption legal rights.

Since 2016 all Australian states and territories except for the Northern Territory and South Australia allow adoption by same-sex couples.^[38][39]

Recognition of gender identity

Tasmania allows for a change of sex but requires the person to divorce if married and to undergo sexual reassignment surgery.^[40] In February 2016 the Tasmanian Anti-Discrimination Commissioner proposed among other things that those two requirements be removed and that a "non-binary" sex descriptor be added.^[41]

Discrimination protections

The Anti-Discrimination Act 1998 (Tas) is a state law that prohibits ‘discrimination and other specified conduct’ (called ‘prohibited conduct’ in the Act) and provides ‘for the investigation and conciliation of, and inquiry into, complaints’ of discrimination and prohibited conduct.^[42] The Act outlaws discrimination in Tasmania on a wide variety of attributes, including gender, lawful sexual activity, actual or perceived sexual orientation and/or gender identity.^[43] In September 2013, the Act was amended to extend protections to transgender and intersex people, whilst also extending protections from offensive conduct to prohibit a person from offending, humiliating, intimidating, insulting or ridiculing another person on the basis of their actual or perceived gender, sexual orientation and/or gender identity.^[44]

Federal law also protects LGBTI people in Tasmania in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.^[45]

Summary table

Same-sex sexual activity legal	(since 1997 for men; always for women)
Equal age of consent
Anti-discrimination state laws for sexual orientation
Anti-discrimination state laws for gender identity or expression
Hate crime laws include sexual orientation
Hate crime laws include gender identity or expression
Gay sex criminal records expunged	(proposed)
Gay panic defence abolished
Recognition in state law of same-sex couples as domestic partners	(since 2003)
Step adoption by same-sex couples
Joint adoption by same-sex couples
Automatic IVF/artificial insemination parenthood for female partners
Access to IVF for lesbians
Same-sex marriages	(federal jurisdiction)
MSMs allowed to donate blood	(one year deferral - Australia-wide)

See also

• LGBT rights in Australia

References

External links