Pride, the Law & the ongoing march for Rainbow Rights.
Abbotts & Co Lawyers are proud of our commitment to assisting members of our local LGBTQIA+ community with their important legal matters.
Being a regional law firm (Mid North Coast of NSW), where the community - especially the legal community - is typically more conservative, we are acutely aware of our moral role to provide support to all those who identify under the rainbow banner.
In this month of Pride, we reflect on our tragic past, acknowledge the hard-won victories, and look ahead at the legal barriers still to be overcome.
Legal rights for the LGBTQIA+ Community in New South Wales.
Picture This: A regional NSW town in the summer of 1984; two adult men enter a lawyer’s office to discuss their committed relationship in relation to preparing a Will. Today, few of us would think twice about this scene but forty years ago it would have been very unlikely to occur. Not only because our social views were much less evolved at that time, but also because in 1984 the two men would have been confessing to being criminals.
On 8 June 1984, the Wran Labor Government would amend the Crimes Act, decriminalising homosexual acts within the state of New South Wales. However, it was not until May 2003 that the Government finally got around to equalising the age of consent for homosexual acts (from 18 years down to 16 years). And it was not until 2014 that all charges under the old law were finally extinguished.
Principal Solicitor Kieran Abbotts is a strong advocate for the rights of the LGBTQIA+ community.
The Dark History of gay treatment in New South Wales.
Australia inherited a draconian view towards homosexuality due to its colonial history. Being part of the British Empire, the new Australian colonies were subjected to anti-homosexual laws such as the Buggery Act of 1533. Once established the newly formed states legislated ‘sodomy’ as a capital crime, punishable by execution.
In New South Wales homosexuality remained a crime due to section 79 of the Crimes Act which stated that whoever “commits the abominable crime of buggery… shall be liable to imprisonment for fourteen years.” This was the case regardless of the presence of informed consent by the individuals.
In the 20th Century, (despite crime, wars, genocide, and the fear of a nuclear holocaust) the NSW Police Commissioner proclaimed (in 1958) that “homosexuality was the single greatest threat facing Australia.”
Guided by such views the NSW Cooma Prison was established as the world’s only prison specifically run for detailing men convicted of being homosexuals. Although disputed, there are numerous reports that the facility was used for human experimentation, utilising conversion therapies in an attempt to ‘cure homosexuality.’
During this period there are anecdotal stories (from both within and outside the police force) of unethical tactics used to entrap and arrest gay men. These included providing free alcohol and other intoxicating substances and placing ‘attractive’ undercover policemen in bathrooms and other public spaces.
It is also worth noting that the World Health Organisation did not remove homosexuality from its list of ‘diseases’ until 1977.
‘The Gays are Revolting’: Origins of the gay rights movement in Australia.
Earlier this year Sydney hosted World Pride which included the annual Mardi Gras tradition. This now iconic protest parade was first held on 24th June 1978, when a small group organised a peaceful march to mark International Gay Solidarity Day.
Although obtaining all necessary permits and permission, the march was broken up in a brazen act of police brutality which demonstrated the simmering bigotry of a segment of the community. Over fifty marches were arrested, with many being badly beaten inside police cells.
The following day the Sydney Morning Herald committed the highly unethical act of publishing the full name and occupations of those arrested. In doing so they not only outed many individuals but also caused them to lose their jobs and relationships. Outraged by what had occurred, a ‘Drop the Charges’ campaign was launched, which initially only lead to further arrests.
The following year (1979) the protest march was held again with over 3,000 people taking to the streets. Despite this march being incident free it is worth noting that following the initial march a wave of gay-hate murders commenced (around 30 of which remain unsolved).
Despite the very real fear of arrests, beatings and even death, the fuse had been lit and just like had occurred in the United States with the Stonewall riots, solidarity grew and the marches went on.
A Fight for Equality- Updating Discrimination laws in New South Wales.
Although no longer being regarded as ‘criminals’, the hard fight for equality had only begun. Progress occurred over many years via legislative changes to state and federal laws.
Via updates to the Anti-Discrimination Act 1977 (NSW) it became against the law to discriminate based on sexuality (1983), transgender status (1996), HIV Status (1996) and marital/domestic status (2008).
In 1999 several laws were undated to recognise the status of same-sex couples in relation to legal procedure and various civil legislation.
In 2014 the NSW Parliament finally abolished The Homosexual Advance Defence (also known as ‘Gay Panic Defence’). This defence previously allowed for the reduction of a murder charge down to manslaughter due to claiming that the killer had been provoked due to an alleged sexual advance (generally by one male on another).
In 2017, after a bitter and unnecessary campaign culminating in a national opinion poll, Marriage equality was finally realised in Australia. This had significant impact to various areas of laws including family law and estate inheritance.
A rainbow forming on a Mid North Coast creek.
What’s Next: The Future of the Gay Rights Movement
There remains a wide range of legal issues which require revision or development to better protect or assist members of the LBGTQIA+ community. In summary we note:
Transgender Rights & Gender Dysphoria treatment.
A complex and ever developing area of medico-legal law, the scope of which is too extensive to be appropriately discussed within this blog.
Banning Conversion Therapy.
Despite the settled scientific view that homosexuality is not the result of any irregularity or biological disturbance there remains an undercurrent of attempts to ‘cure’ it. Although states are beginning to officially ban the practice of conversion therapies (Queensland & ACT doing so in 2020), there remain instances of the practice taking place in private settings under the guise of religious or pseudo-medical guidance/ counselling.
Better acceptance and understanding of rainbow families.
Although the law in relation to family law property settlements are the same for same-sex couples the distinct characteristics of these relationships have not yet been seen on a significant scale (especially in regional areas). As such legal practitioners and the Courts are needing to quickly adjust to better accommodate and gain a greater understanding of new terminology and more modern forms of relationships.
Assisted Reproduction Technology & Legal Parentage.
Since 2018 same sex couples have been allowed to adopt children in all states of Australia. Altruistic Surrogacy (i.e. not for profit) is also legal within New South Wales.
Parenting agreements (between same-sex couples and third-party donors) are increasingly being used to provide a level of certainty for all concerned. The law is attempting to keep pace with rapidly evolving technological advances in this space.
Protection from Discrimination due to HIV Status.
Although our community is now much more informed about HIV there continues to be some stigma in parts of society. In NSW Discrimination in the workplace, or any other setting, in relation to HIV status is illegal. A HIV positive person is generally not required to disclose their health status.
Access to Religious Schools & Institutions.
Issues continue regarding the rights of LGBTQIA+ students and teachers in relation to religious schools. As late as January this year a governmental paper was released recommending that laws be amended to explicitly outlaw discrimination on the basis of sexuality, gender or any other personal traits within these organisations, while simultaneously attempting to balance preference and freedom of religion.
LGBTQIA+ access to aged care.
Despite issues persisting, since 2013 it has been against the law for aged care providers (including those owned by religious groups) to exclude people from aged care services due to their sexuality.
At Abbotts & Co Lawyers you can have confidence that regardless of your identity, gender, or sexuality you will be warmly welcomed and treated with the complete respect that you deserve.
Should you wish to discuss your estate planning or family law matter, or if you wish to discuss an instance of discrimination please do not hesitate to contact our friendly and non-judgemental team.