Letter to WA Political Parties re Anti-Discrimination and Birth Certificate Reform

The writs for the Western Australian state election will be issued at 6pm today (3 February 2021). The upcoming poll, on Saturday 13 March, is an opportunity to make long-overdue progress on a range of important policy issues affecting the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

As with elections last year in the Northern Territory, Australian Capital Territory and Queensland, I am writing to political parties contesting the WA election asking for their commitments on LGBTI law reform.

While there are a variety of different policy issues that must be addressed, my letter focuses on two areas where I have the most expertise:

  • Reform of the Equal Opportunity Act 1984 (WA),[i] and
  • Changes to identity documentation for trans and gender diverse people.[ii]

This letter has been sent to the leaders of the WA Labor Party, Liberal Party and National Party, as well as to all MLCs from other parties: The Greens; One Nation; Liberal Democrats; Shooters, Fishers and Farmers; and Western Australia Party. As with previous elections, I will post any responses I receive from these parties below.


Given the upcoming Western Australian state election, I am writing to ask about your Party’s positions on two important issues for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

I do so as a long-term advocate for the LGBTI community, including via my website www.alastairlawrie.net where I focus on anti-discrimination and anti-vilification law reform around Australia, among other topics.

The first issue I would like to ask about is reform of the Equal Opportunity Act 1984 (WA), which is necessary to address its serious shortcomings in relation to discrimination against and vilification of LGBTI people in Western Australia. Specifically:

  1. Will you protect intersex people against discrimination by introducing a new protected attribute of ‘sex characteristics’?
  2. Will you protect all trans and gender diverse people against discrimination by replacing the current inappropriate, ineffective and outdated protected attribute of discrimination against ‘a gender reassigned person on gender history grounds’ with a protected attribute of ‘gender identity’?
  3. Will you protect LGBT students, teachers and other staff at religious schools against discrimination by removing the special privileges which currently allow them to discriminate?
  4. Will you protect LGBT employees at, and people accessing services from, religious organisations in health, housing and other community services against discrimination by amending religious exceptions generally, based on the best practice approach in Tasmania’s Anti-Discrimination Act 1998?
  5. Will you protect LGBTI people against hate speech by introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics?

The second issue I would like to ask about is access to identity documentation, including birth certificates, for trans and gender diverse people, which is another area where Western Australia’s legislative approach has fallen far behind most other jurisdictions. Specifically:

  1. Will you allow trans and gender diverse people to update their birth certificates and other identity documents without requiring surgery, other medical treatments or counselling?
  2. Will you allow trans and gender diverse people to update their birth certificates and other identity documents based on self-identification alone?
  3. Will you allow trans and gender diverse people to update their birth certificates and other identity documents by identifying as male, female, non-binary or ‘other, please specify’, in line with recent reforms in both Tasmania and Victoria?

Thank you in advance for your prompt consideration of this request. Please note that any answers provided will be published via my website, to assist LGBTI people in Western Australia make an informed choice on Saturday 13 March.

Please do not hesitate to contact me, at the details provided, should you require clarification of the above.


Alastair Lawrie


Update: 13 February 2021

During the week, I received the first formal Party response to the above correspondence, from the WA Greens. Their commitments are reproduced below:

Dear Alastair

Thank you for your email to WA Greens MPs.

I am pleased to advise that the Greens are committed to removing discrimination on the grounds of gender identity or sexuality from all federal and state laws. We want the process for legal recognition of gender in Western Australia to be simplified and for Western Australian birth certificates to have an X gender marker, in line with most of the rest of Australia.

The Greens (WA) will encourage and support legislation and actions that ensure that intersex and transgender people, without undertaking surgeries, are able to alter their sex on all official documents, consistent with how they live and identify, and irrespective of their marital status.

As the Member for the North Metropolitan Region and Greens (WA) spokesperson I have been a long term advocate in this space. In 2018 I introduced a Private Members Bill into the WA Legislative Council, the Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill 2018, seeking to end discrimination against LGBTIQ parents, students and staff by religious schools. Disappointingly, this bill has not received the support necessary from other political parties for it to be passed and to become law.

The Greens will continue to fight to remove all exceptions in the Equal Opportunity Act that permit discrimination against people on the basis of their gender identity and/or sexuality.

If you would like more information, the Greens (WA) Sexuality & LGBTQIA+ Issues and Gender Identity policies provide more information about our party’s commitments in these areas.

The Greens have also proposed a WA Charter of Rights to provide further protections against rights-based infringements including discrimination.

Thank you for your interest and advocacy in this important area.

Kind regards


Hon Alison Xamon MLC (BA, LLB, Cert IV HS, Cert Adv Arb)

Member for the North Metropolitan Region, Legislative Council, Parliament of Western Australia


Update: 25 February 2021

On Tuesday (23 February 2021), I received the following reply from the Leader of the WA Nationals, Mia Davies, which, as you will see, does not give specific commitments on either LGBTI anti-discrimination law reform or improved access to birth certificates for trans and gender diverse people – other than that Nationals MPs would be granted conscience votes on both issues.

Dear Mr Lawrie


Thank you for your correspondence dated 3 February 2021. I appreciate your advocacy in relation to LGBTI legislation and the need for reform.

One of the founding principles of The Nationals WA is that regional West Australians deserve access to relevant services and protections against discrimination, regardless of their postcode. As you would be aware the day-to-day issues faced by LGBTI people are often exacerbated by remoteness and isolation from services and support networks.

If legislation to resolve the issues raised was introduced to Parliament, voting on it would be a matter of conscience for Members of The Nationals WA team. I encourage you to send your questions to each local candidate in The Nationals WA team for their individual responses. Their details can be found on our website http://www.nationalswa.com/

Although not specific to LGBTI individuals and families, The Nationals WA have made the following election commitments to date which may be of interest:

-$15 million for an office of the State Rural Health Commissioner, to complement the work done at a national level. This office would be independent of Government, providing advice and reporting on rural and regional health concerns.

-$140 million for regional mental health services, including demographically targeted funding for regional community support hours.

Further details on these and other election commitments can be found on our website.

Yours sincerely

Hon Mia Davies MLA



[i] For example, see What’s wrong with Western Australia’s Equal Opportunity Act 1984?  and A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For example, see Identity, Not Surgery and Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.

Submission to WA Law Reform Commission Inquiry into Recognition of a Person’s Sex, Change of Sex or Intersex Status

Update 5 March 2019:


The Law Reform Commission of Western Australia has handed down its final report of its Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics (a copy of the report is available here).


It is generally well-considered, and largely positive for the trans, gender diverse and (in parts at least) intersex communities.


This includes Recommendation 1 that “The Equal Opportunity Act 1984 (WA) be amended to include protections against discrimination based on gender identity and intersex status” (although the latter protected attribute should instead be ‘sex characteristics’ in line with the Yogyakarta Principles plus 10).


There are also a range of recommendations that clarify the difference between sex and gender (and which one should be recorded in different contexts).


The most controversial recommendations (albeit ones I support) are:


Recommendation 5

Sex classification be removed from birth certificates


Recommendation 6

The Births, Deaths and Marriages Registration Act 1998 (WA) and the Births, Deaths and Marriages Registration Regulations 1999 (WA) be amended to expressly prohibit the recording of sex or gender on birth certificates.


This would then be replaced by an opt-in system of ‘Gender Identity Certificates’ for situations where gender may be relevant:


Recommendation 7

The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an application process for a person born in Western Australia to apply for a Gender Identity Certificate (with Recommendation 8 covering people born outside WA).


Importantly, under Recommendation 9, the gender markers included in these certificates would be expanded to include male, female and non-binary (although it does not include an ‘other’ category, as suggested in my submission to the Review, published below).


The WALRC further recommends that there no longer be any surgical or medical barriers for people to update their Gender Identity Certificate, instead proposing a simple administrative process, which, if introduced, would be best practice in Australia (for a comparison with existing laws around Australia, see Identity, not Surgery).


That phrase – if introduced – is key. Unfortunately, I understand that the WA Government has already shied away from the removal of sex and/or gender from birth certificates which, if true, would obviously be incredibly disappointing.


Trans, gender diverse and intersex people deserve better than to have a progressive Law Reform Commission of Western Australia report languish, unimplemented, on the shelves. Let’s hope the WA Government remembers why it commissioned this review in the first place.


Original submission:

Law Reform Commission of Western Australia

Level 23, David Malcolm Justice Centre

28 Barrack St

Perth WA 6000



Friday 19 October 2018


To whom it may concern


Submission in relation to recognition of a person’s sex, change of sex or intersex status


Thank you for the opportunity to provide a submission to this important inquiry.


As noted in the Discussion Paper, Western Australia’s current legislation in relation to recognition of a person’s sex, change of sex (or gender) or intersex status is inadequate and out-dated, with negative consequences for trans, gender diverse and intersex individuals.


The model for reform proposed by the Commission would address a number of these short-comings, although I believe there could be further improvements as discussed below.


I write this submission as a cisgender gay member of the LGBTI community, and as an ally of the intersex, trans and gender diverse communities. Where there may be inconsistencies between this submission and the positions supported by those communities, I defer to their views.


Question 1. Will the Commission’s proposed model cause any difficulties if implemented?


I believe the Commission’s proposed model will remove some of the regulatory barriers currently experienced by trans and gender diverse people in having their gender identities recognised in Western Australia.


The removal of sex from birth certificates will also have particular benefits for people born with variations in sex characteristics, reducing pressure for involuntary and unnecessary medical treatments and/or surgeries to be performed.


However, as indicated above, I believe there could nevertheless be some improvements made to the model to ensure it better addresses the needs of these diverse communities.


Question 2. Is the ‘indeterminate’ category sufficient or should additional categories be added to the forms that are used for the First Report and the Second Report, which will then be used to record the sex of the child?


In principle, I do not object to the recording of ‘indeterminate’ sex in the First or Second Reports, provided other aspects of the model – and especially the removal of sex from birth certificates – are also implemented. This appears to ensure statistical data is collected while also reducing the stigmatisation of children born with intersex variations.


However, if the collection of ‘indeterminate’ sex is to continue through this process, it would be useful for the WA Government to indicate the numbers of births that have been recorded using this category – and also to actively monitor the number of children with intersex variations who undergo medical interventions to modify their sex characteristics each year (in an effort to reduce and ultimately eliminate human rights abuses in this area).


Question 3. Should sex classification be mandatory on birth certificates?




I can see no proper purpose for recording sex classification in this way. In contrast, there are multiple benefits to be gained by removing this category from this form.


For trans and gender diverse people, and especially trans and gender diverse young people, it means they will be able to determine their own gender identity (which is much more relevant) when they are ready – and have that identity reflected in official documentation more easily (under other parts of the model),


For people born with variations of sex characteristics, it will help to reduce pressures for involuntary and unnecessary treatments and/or surgeries to alter their sex characteristics to conform to medical, parental and/or societal expectations.


The removal of sex and gender from birth certificates has also been called for in the March 2017 Darlington Statement of Australian and New Zealand intersex advocates and as part of the Yogyakarta Principles plus 10.


Question 4. Should alternative markers be available, such as ‘other/indeterminate’ or ‘not specified’, if sex classification is required on birth certificates?


I would defer to the views of intersex, trans and gender diverse organisations on this issue.


However, for the reasons outlined above, I would strongly urge the Commission – and the Western Australian Parliament – to ensure that sex classification be removed, avoiding the potential for adverse consequences in this area.


Question 5. Are there circumstances in which it will be necessary or desirable to prove sex through a birth certificate, where proof of gender by a Gender Identity Certificate or proof of sex by medical documentation is not appropriate or sufficient?


No. I can think of no circumstances in which proof of sex through birth certificate would be necessary, or preferable instead of proof of gender by Gender Identity Certificate.


Question 6. If yes for the above, would certification by the Registrar alleviate this issue?


Not applicable.


Other comments on the proposed model


There are other aspects of the Commission’s proposed model that are welcome, including the recommended abolition of the Gender Reassignment Board (with the simplified functions under the model performed by the Registrar instead).


I also welcome the proposed ability of minors to apply for a Gender Identity Certificate from the age of 12, with parental consent.


However, I question the age at which parental consent should no longer be required. Rather than the age of 18, which appears to be the position of the Discussion Paper, I believe consideration should be given to adopting an age of 16, as recommended by the February 2016 options paper from the Tasmanian Anti-Discrimination Commissioner.


In terms of which categories should be available on Gender Identity Certificates, I suggest that all of Male, Female, Non-Binary and Other (Please Specify) should be options, to recognise the complexity of gender identity, and that simply adding ‘non-binary’ may not accurately capture all of the possible identities of trans and gender diverse people.


However, as expressed earlier in the submission, if the consensus view of trans organisations and individuals is that Male, Female and Non-Binary are sufficient, I defer to those views.


On the issue of time limits, I do not agree with the proposal to make any change of gender identity beyond the third occasion subject to approval by an appropriate court or tribunal. I can see no reason why, if change of name is allowed annually, that application for change of gender identity should not also be allowed every 12 months (while noting that it is highly unlikely people will actually apply more than two or three times).


I also believe there may be some circumstances in which, even within a particular 12 month timeframe, there may be reasons to allow a person to apply to an appropriate court or tribunal for a change of gender identity to be revised (where, for example, a person is distressed following the issuing of a new gender identity certificate and making them wait to amend it has the potential to cause additional psychological distress).


An additional concern I have about the model is the comment on page 70 that “The Registrar may also request further evidence if required to prove the application [for a Gender Identity Certificate] is not sought for an improper or fraudulent purpose.”


This power seems to undermine the overall intention for the model to reflect self-identification as far as possible. There is also already a penalty for providing a false statutory declaration, making the necessity of such a power debatable.


In this situation, I suggest consideration of either removing this power entirely, or for ensuring additional safeguards on its exercise, to ensure it is only used sparingly, and in exceptional circumstances (rather than reintroducing onerous requirements for individuals to supply medical and other evidence through these administrative arrangements).


In addition, any decision by a Registrar to reject an application for a new Gender Identity Certificate (that is different to a previous certificate) on these grounds must be easily appealable, at low or no cost to the individual.


Finally, in relation to determining the appropriate place to hear appeals (both in relation to this issue, and also on other questions, such as applications for Gender Identity Certificates for minors where parents disagree, or where a person seeks a change in certificate prior to the expiry of any relevant time limits), I express reservations about the suggestion on page 75 that:


“The Commission considers the Family Court to be an appropriate decision-maker where the application is contested by one or more parent(s)/guardian(s), given the Family Court’s jurisdiction for approving medical procedures for intersex and trans and gender diverse minors in circumstances where a child is unable to give informed consent or where there is a disagreement between the parents or guardians about the medical procedure.”


Based on some harmful decisions in relation to intersex minors and involuntary medical treatments and/or surgeries by the Family Court of Australia, the Western Australian Family Court may not be seen as being best-placed to adopt the role of decision-maker under the Commission’s proposed model. I therefore suggest consideration be given to adopting a different decision-maker, including the possibility of a specialist tribunal within Western Australia.


Other issues


I welcome the comments by the Commission, on page 77, that:


“The [Equal Opportunity Act 1984] does not provide protections for intersex people, on the basis of their sex characteristics or intersex status, nor does it provide protections for people on the basis of their gender identity. The Commission considers a detailed review of the EO Act would be beneficial.”


However, while I support the view that this inadequate and out-dated legislation should be reviewed, I do not believe this should delay amendments to the protected attributes covered under the Act to ensure all members of the LGBTI community in Western Australia are protected against discrimination, as quickly as possible.


This could be achieved by adding the protected attribute of ‘gender identity’, potentially based on the definition used in the CommonwealthSex Discrimination Act 1984(with final wording agreed following consultation with the WA trans and gender diverse community).


However, I disagree with the Commission that consideration should be given to introducing a protected attribute of ‘intersex status’, again potentially based on the Sex Discrimination Actdefinition.


While that approach would ensure greater consistency between WA and Commonwealth law, it is not best practice. Instead, I support the introduction of a protected attribute of ‘sex characteristics’, as called for by Intersex Human Rights Australia, and in the Darlington Statement, potentially using the definition included in the Yogyakarta Principles plus 10:


‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’


Finally, I note that any consultation that addresses the issue of legal recognition of people with intersex variations will inevitably raise the issue of harmful, involuntary and unnecessary medical surgeries and/or treatments of children born with variations in sex characteristics.


The Discussion Paper indeed touches on this issue, including noting on page 28 that “The Commission understands that the current medical preference is to monitor, rather than intervene, for as long as is medically viable.”


My own understanding, based on views expressed by intersex organisations, is that this position may not be entirely accurate. I therefore call on the Commission to further investigate this issue, in consultation with intersex organisations.


Ultimately, I would like to see Principle 32 of the Yogyakarta Principles plus 10 reflected in the lived experience of all intersex people in Australia:


‘Everyone has the right to bodily integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless medically necessary to avoid serious, urgent and irreparable harm to the concerned person’ (emphasis added).


Please do not hesitate to contact me at the details provided below should you wish to clarify any of the above, or for further information.



Alastair Lawrie


What’s Wrong With Western Australia’s Equal Opportunity Act 1984?

This post is part of a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Other articles in the series can be found here.

Specifically, each post considers three main aspects of LGBTI anti-discrimination legislation:

  • Protected attributes
  • Religious exceptions, and
  • Anti-Vilification Coverage.

Unfortunately, as we shall see below, the Western Australian Equal Opportunity Act 1984 (‘the Act’) has significant problems in terms of all three elements, making it serious competition to the NSW Anti-Discrimination Act 1977 for the (unwanted) title of worst LGBTI anti-discrimination law in the country.


Protected Attributes

As with most Australian anti-discrimination laws (other than those in the Commonwealth, South Australia, Tasmania and the ACT), the Equal Opportunity Act 1984 only protects some parts of the LGBTI community from discrimination, but not others.

On the positive side, it does include all lesbian, gay and bisexual members of the community – with ‘sexual orientation’ defined in section 4 as:

“in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.”[i]

On the negative side, however, it completely excludes intersex people from anti-discrimination protection, an omission that should be rectified immediately.

On the negative and downright bizarre side, the Western Australian Act adopts a completely unique approach that results in only transgender people whose gender identity as been officially recognised by the State Government benefiting from anti-discrimination coverage.

Specifically, rather than prohibiting discrimination on the basis of gender identity (which would be best practice), the Act only prohibits discrimination against “a gender reassigned person on gender history grounds”.[ii]

Section 4 of the Act states that “gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act”, while section 35AA prescribes that “[f]or the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.”

Prima facie, the combination of these two definitions mean that only people who have transitioned from male to female, or vice versa, and had that transition recognised by the Government via the Gender Reassignment Act are protected from discrimination. People who have yet to transition, or any trans person who is non-binary, are not covered by these clauses. This is a serious flaw, and one that must be corrected by the WA State Government.

Conclusion: While lesbian, gay and bisexual Western Australians are included in the protected attributes of the Equal Opportunity Act 1984, intersex people are completely excluded, as are a large number of trans people (either because their gender identity has not been formally recognised under the Gender Reassignment Act, or because their gender identity is non-binary).

Both flaws should be rectified as a matter of priority, with the adoption of the protected attribute of ‘gender identity’ as found in the Commonwealth Sex Discrimination Act 1984, and the inclusion of ‘sex characteristics’ as called for by intersex activists in the March 2017 Darlington Statement.


Religious Exceptions

While it’s approach to trans anti-discrimination regulation is unique, the Equal Opportunity Act’s provisions surrounding the rights of religious organisations to discriminate against LGBT people are pretty standard for a state and territory (or even Commonwealth) law[iii]. Unfortunately, that ‘standard’ allows homophobic, biphobic and transphobic discrimination in an incredibly wide range of circumstances.

Section 72 of the Act states:

Religious bodies

Nothing in this Act affects-

(a) the ordination or appointment of priests, ministers of religion or members of any religious order; or

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

The first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 72(d) is effectively a blanket exception that allows any religious organisation – including religious-operated schools, hospitals and community services – to discriminate against LGBT employees, and LGBT people accessing their services. This is clearly unacceptable.

Religious schools don’t even need to rely on this broad exception. That’s because they have additional, specific protections in section 73, which allow them to discriminate against teachers and other employees (sub-section (1)), contract workers (sub-section (2)), and even students (sub-section (3)).

Sub-section (1) is incredibly generous (with sub-section (2) adopting similar wording):

“(1) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

Even though the wording used in relation to students is slightly narrower, it nevertheless envisages discrimination against students on the basis of sexual orientation or against gender reassigned persons on the basis of their gender history:

“(3) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act, other than the grounds of race, impairment or age, in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed.”[iv]

Given education is conducted in the public sphere, it is, in nearly all circumstances, at least partially paid for by taxpayers, and above all it is the right of students to receive a comprehensive and inclusive education free from discrimination, there can be no justification for the continued existence of the exceptions for religious schools outlined in section 73. Just like sub-section 72(d), they should be repealed as a matter of priority.

Conclusion: The religious exceptions contained in the WA Equal Opportunity Act are, sadly, similar to those that exist in most Australian jurisdictions, in that they provide religious organisations generally, and religious schools in particular, extremely generous rights to discriminate against lesbian, gay, bisexual and trans employees and people accessing services. These religious exceptions must be curtailed to better protect LGBT Western Australians against discrimination.


Anti-Vilification Coverage

This will be the shortest section of this post because, well, there isn’t any: there is currently no prohibition on vilification of LGBTI people under the Equal Opportunity Act 1984. This lack of protection is similar to the Commonwealth, Victoria, South Australia and the Northern Territory.

Interestingly, the Act also excludes racial vilification. Instead, Western Australia has chosen to outlaw racial vilification via the Criminal Code 1913, which creates a total of eight related offences, including:

Section 77. Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years” and

Section 78. Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.”[v]

However, there are exactly zero offences outlawing vilification of LGBTI people in the Code. This disparity is completely unjustified, especially given the real and damaging impact of homophobia, biphobia, transphobia and intersexphobia on people’s lives (similar to the detrimental impact of racism).

If vilification offences are to be retained, as I believe they should (even if some right-wing Commonwealth MPs and Senators may disagree), then they should be expanded to cover vilification against members of the LGBTI community.

Conclusion: Neither the Equal Opportunity Act nor the Criminal Code prohibit LGBTI vilification, despite the latter creating a number of offences against racial vilification. Similar offences should also be established against the vilification of lesbian, gay, bisexual, transgender and intersex Western Australians.


Other Issues

We have already seen, under ‘Protected Attributes’ above, that the Equal Opportunity Act offers only limited anti-discrimination protections to Western Australia’s trans and gender diverse community.

Unfortunately, this ‘anti-trans’ approach is replicated in a number of other sections of the Act, and is even featured in the Long Title: “An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar’s website, or involving sexual or racial harassment or, in certain cases, on gender history grounds” [emphasis added].

Note that, not only does ‘gender history’ come last, it is also the only ground which features the qualifier ‘in certain cases’.

The objects of the Act are also exclusionary with respect to trans people. While object (a) in section 3 the Act seeks to ‘eliminate, so far as possible’ discrimination on grounds including sexual orientation and “in certain cases, gender history”, object (d) excludes trans people altogether:

“to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.”

Apparently, promoting recognition and acceptance of transgender people is not a priority.

This approach is also reflected in substantive parts of the Bill. Whereas section 35ZD allows discrimination in favour of people on the basis of their sexual orientation “to ensure that persons of a particular sexual orientation have equal opportunities with other persons” and “to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs” (ie positive discrimination), there is no equivalent section for transgender people (or gender reassigned people with a gender history).

There is even a sub-section (74(3a)) that ensures an aged care service cannot discriminate solely in favour of transgender people (even though other aged care services can discriminate on the basis of ‘class, type, sex, race, age or religious or political conviction’[vi]).

Even the way some sections of Part IX, which aims to provide ‘Equal opportunity in public employment’, are drafted indicate that transgender discrimination is to be considered separately. For example, section 140 states:

“The objects of this Part are-

(a) to eliminate and ensure the absence of discrimination in employment on the ground of sex, marital status, pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or the publication of relevant details on the Fines Enforcement Registrar’s website; and

(aa) to eliminate and ensure the absence of discrimination in employment against gender reassigned persons on gender history grounds; and

(b) to promote equal employment opportunity for all persons.”[vii]

It is bizarre that even the protected attribute of ‘publication of relevant details on the Fines Enforcement Registrar’s website’ is included with sex, race and sexual orientation (among others), while gender reassigned persons are included in a separate sub-section.

Whenever the Western Australian Equal Opportunity Act 1984 is finally updated to ensure all transgender and gender diverse people are protected from discrimination, these additional sections will need to be updated to ensure that, as a protected attribute, gender identity is finally treated equally to other attributes.


In October 2018, the Western Australian Attorney-General John Quigley announced that the Equal Opportunity Act would be referred to the Law Reform Commission of Western Australia for a comprehensive review. This was in the wake of the leaking of the recommendations from the Ruddock Religious Freedom Review, and publicity about the issue of discrimination against LGBT students and teachers in religious schools.

In March 2019, the Law Reform Commission of Western Australia confirmed the details of this review (which can be found here).

Importantly, from an LGBTI perspective, this includes consideration of:

a. the objects of the Act and other preliminary provisions;

b. the grounds of discrimination including (but not limited to) introducing grounds of gender identity and intersex status;

e. the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification;

g. exceptions to grounds of discrimination including (but not limited to) those for religious institutions;

l. interaction with the Commonwealth Marriage Amendment (Definition and Religious Freedoms) Act 2017 and with other relevant Commonwealth laws or proposed laws.

It will be essential for LGBTI advocates within WA, and with support nationally, to engage with the Law Reform Commission process, and then to pressure the McGowan Government to bring the Equal Opportunity Act 1984 into the 21st century.

Update 11 July 2020:

Unfortunately, while the Law Reform Commission process was commenced in early 2019, as of mid-2020 there have been no official consultations or publications arising from this Review. The website for the inquiry has not even been updated since 6 March 2019. With the next State election due on 13 March 2021, it is now highly unlikely the Review will be completed this term.

Mark McGowan

Will WA Labor Premier Mark McGowan, elected in March 2017, update the out-dated Equal Opportunity Act 1984?

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus


[i] With discrimination on the basis of sexual orientation then prohibited under Part IIB of the Act.

[ii] Section 35AB.

[iii] Other than Tasmania’s exceptions, which are significantly narrower and, to a lesser extent, Queensland’s and the Northern Territory’s.

[iv] Interestingly, the phrase “other than the grounds of race, impairment or age” is omitted from the exceptions relating to teachers and contract workers – presumably religious schools can discriminate on these attributes then too.

[v] Other related offences include:

79 Possession of material for dissemination with intent to incite racial animosity or racist harassment

80 Possession of material that is likely to incite racial animosity or racist harassment

80A Conduct intended to racially harass

80B Conduct likely to racially harass

80C Possession of material for display with intent to racially harass

80D Possession of material for display that is likely to racially harass

[vi] Sub-section 74(2)(a).

[vii] Section 146 includes a similar delineation.