The 2019 NSW election will be held on Saturday March 23.
It will determine who holds Government until March 2023.
Therefore, with just over a month to go, here are 23 LGBTI issues that parties and candidates should address.
- Provide anti-discrimination protection to bisexual people
The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that does not cover bisexual people. This should be amended as a matter of urgency, by adopting the Sex Discrimination Act 1984 (Cth) definition of sexual orientation.[i]
- Provide anti-discrimination protection to non-binary trans people
The NSW Anti-Discrimination Act 1977 also fails to protect non-binary trans people against mistreatment, because its definition of transgender is out-dated. This definition should be updated, possibly using the Sex Discrimination Act definition of gender identity, to ensure it covers all trans and gender diverse people.
- Provide anti-discrimination protection to intersex people
The NSW Anti-Discrimination Act 1977 does not have a stand-alone protected attribute covering people born with intersex variations. It should be amended as a matter of urgency by adopting the Yogyakarta Principles Plus 10 definition of sex characteristics: ‘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.’
- Remove the special privileges that allow private schools and colleges to discriminate against LG&T students and teachers
The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that allows all privates schools and colleges, religious and non-religious alike, to discriminate on the basis of homosexuality and transgender status.[ii] These special privileges must be repealed, so that all LGBTI students, teachers and staff are protected against discrimination no matter which school or college they attend.
- Remove the general exception that allows religious organisations to discriminate in employment and service delivery
Section 56(d) of the NSW Anti-Discrimination Act 1977 provides that its protections do not apply to any ‘act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religions susceptibilities of the adherents of that religion.’ This incredibly broad exception allows wide-ranging discrimination against lesbian, gay and trans people. This provision should be replaced by the best-practice approach to religious exceptions in Tasmania’s Anti-Discrimination Act 1998.
- Remove the special privilege that allows religious adoption agencies to discriminate against LG&T prospective parents
Section 59A of the NSW Anti-Discrimination Act 1977 allows religious adoption agencies to discriminate against prospective parents on the basis of homosexuality and transgender status. This special privilege should be repealed, because the ability of an individual or couple to provide a loving and nurturing environment for a child has nothing whatsoever to do with their sexual orientation or gender identity.
- Reform commercial surrogacy laws
Under the NSW Surrogacy Act 2010, it is illegal to enter into commercial surrogacy arrangements, either within NSW or elsewhere (including overseas), punishable by up to two years’ imprisonment. Despite this prohibition, people in NSW (including many same-sex male couples) continue to enter into international surrogacy arrangements. It is clearly not in the best interests of children born through such arrangements for either or both of their parents to be subject to criminal penalties. NSW should either legalise and appropriately regulate commercial surrogacy domestically, or remove the prohibition on international surrogacy.[iii]
- Recognise multi-parent families
Modern families continue to evolve, particularly in terms of the number of parents who may be involved in a child’s upbringing, and especially within rainbow families (for example, with male donors playing an increasingly active role in the lives of children born with female co-parents). This growing complexity should be recognised under the law, including the option of recording more than two parents on official documentation.
- Modernise the relationships register
The NSW relationships register may have declined in salience, especially within the LGBTI community, following the passage of same-sex marriage in December 2017. However, it remains an important option for couples to legally prove their relationship, especially for those who do not wish to marry (for whatever reason). However, the NSW Relationships Register Act 2010 requires modernisation, including by amending the term ‘registered relationship’ to ‘civil partnership’, and by allowing couples to hold a ceremony if they so choose.[iv]
- Remove surgical and medical requirements for trans access to identity documentation
Another law requiring modernisation is the NSW Births, Deaths and Marriages Registration Act 1995, which currently provides that, in order to record a change of sex, a person must first have undergone a sex affirmation procedure. This is completely inappropriate, especially because many trans and gender diverse people either do not want to, or cannot (often for financial reasons), undergo surgery. Gender identity should be based on exactly that, identity, with this law amended to allow documentation to be updated on the basis of statutory declaration only, without medical practitioners acting as gate-keepers.[v] The range of identities that are recorded should also be expanded, and this should be done in consultation with the trans and gender diverse community.
- Ban unnecessary and involuntary medical treatment of intersex children
One of the worst human rights abuses perpetrated against any LGBTI community in Australia is the ongoing involuntary medical treatment of intersex children, which often includes unnecessary surgical modification to sex characteristics. Despite a 2013 Senate report recommending action to end these harmful practices, nothing has been done, including in NSW. With a new review being undertaken by the Australian Human Rights Commission,[vi] whoever is elected in March must take concrete steps to ban non-consensual, medically unnecessary modifications of sex characteristics as soon as possible. In doing so, they should consult with Intersex Human Rights Australia and other intersex organisations, and be guided by the Darlington Statement.
- Ban gay and trans conversion therapy
Another abhorrent practice that should be banned immediately is gay or trans conversion therapy, which is not therapy but is psychological abuse. Thankfully, this problem has received increased attention over the past 12 months, including a focus on the need for multi-faceted strategies to address this issue. However, a key part of any response must be the criminalisation of medical practitioners or other organisations offering ‘ex-gay’ or ‘ex-trans’ therapy, with increased penalties where the victims of these practices are minors.[vii]
- Establish a Royal Commission into gay and trans hate crimes
In late 2018, the NSW Parliament commenced an inquiry into hate crimes committed against the gay and trans communities between 1970 and 2010. This inquiry will not be completed prior to the election, and has barely scratched the surface of the extent of these crimes, and the failures of NSW Police to properly investigate them. Any new Government should establish a Royal Commission to thoroughly examine this issue.[viii]
- Re-introduce Safe Schools
The Safe Schools program is an effective, evidence-based and age-appropriate initiative to help reduce bullying against lesbian, gay, bisexual, transgender and intersex students. Unfortunately, following a vitriolic homophobic and transphobic public campaign against it, the NSW Government axed Safe Schools in mid-2017. In its place is a generic anti-bullying program that does not adequately address the factors that contribute to anti-LGBTI bullying. The Safe Schools program should be re-introduced to ensure every student can learn and grow in a safe environment.[ix]
- Include LGBTI content in the PDHPE Syllabus
The NSW Personal Development, Health and Physical Education (PDHPE) curriculum does not require schools to teach what lesbian, gay, bisexual, transgender or intersex mean, or even that they exist. The new K-10 Syllabus, gradually implemented from the beginning of 2019, excludes LGBTI students and content that is relevant to their needs. It is also manifestly inadequate in terms of sexual health education, with minimal information about sexually transmissible infections and HIV. The Syllabus requires an urgent redraft to ensure LGBTI content is adequately covered.[x]
- Expand efforts to end HIV
NSW has made significant progress in recent years to reduce new HIV transmissions, with increased testing, greater access to pre-exposure prophylaxis (PrEP) and higher treatment rates. However, new HIV diagnoses among overseas-born men who have sex with men are increasing. The NSW Government should create an affordability access scheme for people who are Medicare-ineligible that covers PrEP and HIV treatments (including for foreign students). The introduction of mandatory testing of people whose bodily fluids come into contact with police (aka ‘spitting laws’)[xi] should also be opposed.[xii]
- Appoint a Minister for Equality
Both the NSW Government and Opposition currently have spokespeople with responsibility for women, ageing and multiculturalism. However, neither side has allocated a portfolio for equality. Whoever is elected on 23 March should appoint a Minister for Equality so that LGBTI issues finally have a seat at the Cabinet table.[xiii]
- Establish an LGBTI Commissioner
The Victorian Government does have a Minister for Equality (the Hon Martin Foley MP). They have also appointed a Gender and Sexuality Commissioner (Ro Allen) whose role it is to co-ordinate LGBTI initiatives at a bureaucratic level. A new Government in NSW should also appoint an LGBTI Commissioner here.
- Create an Office for Equality
While having leadership positions like a Minister for Equality and an LGBTI Commissioner are important, the work that is done by an Office for Equality within a central agency (like the Equality Branch within the Victorian Department of Premier and Cabinet) is essential to support LGBTI policies and programs across Government.
- Convene LGBTI education, health and justice working groups
The NSW Government should establish formal consultative committees across (at least) these three policy areas to ensure that the voices of LGBTI communities are heard on a consistent, rather than ad hoc, basis.
- Investigate creation of a Pride Centre
Another initiative that is worth ‘borrowing’ from south of the NSW border is the creation of a Pride Centre, to house key LGBTI community organisations, potentially including a permanent LGBTI history museum. This centre would need to be developed in close partnership with LGBTI groups, and should be properly investigated during the next parliamentary term.
- Provide funding for LGBTI community organisations
There is significant unmet need across NSW’s LGBTI communities, which should be addressed through increased funding for community advocacy, and service-delivery, organisations, with a focus on intersex, trans and bi groups, and Aboriginal and Torres Strait Islander LGBTI bodies. This should also include funding for LGBTI services focusing on youth, ageing, mental health, drug and alcohol, and family and partner violence issues, and to meet the needs of LGBTI people from culturally and linguistically diverse and refugee backgrounds.
- Develop and implement an LGBTI Strategy
If, in reading this long list, it seems that NSW has a long way left to go on LGBTI issues, well that’s because it’s true. The birthplace of the Sydney Gay & Lesbian Mardi Gras parade has fallen behind other states and territories when it comes to LGBTI-specific policies and programs. We need a whole-of-government strategy, including clear goals and transparent reporting against them, to help drive LGBTI inclusion forward.
[i] For a comparison of Australian anti-discrimination laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.
[ii] Sections 38C, 38K, 49ZH and 49ZO. For more, see: What’s Wrong With the NSW Anti-Discrimination Act 1977.
[iv] For more, see: Submission to Review of NSW Relationships Register Act 2010.
[xiii] [To be added at a later date.]