South Australian Law Reform Institute Audit Report: Sex and Gender Identity Discrimination in Laws

The South Australian Law Reform Institute (‘the Institute’), housed in the Adelaide Law School and under the direction of Professor John Williams and Dr David Plater, has recently delivered a comprehensive Audit Report to the South Australian Government identifying those South Australian laws that discriminate on the grounds of, sexual orientation, gender identity and intersex status.

The Audit Report is the first component of a challenging and important reference provided to the Institute by the Attorney-General of South Australia, the Honourable John Rau, MP in January 2015. The Reference looks at how our laws operate to ignore, exclude, or discriminate against individuals and families on the grounds of sexual orientation, gender, gender identity, or intersex status.

Working closely with government agencies, experts and individuals and organisations from the lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ) communities, the Institute was able to supplement its extensive desktop review of South Australian laws with a summary of priority areas in need of reform. The individuals consulted asked searching questions of the law and the values it enshrines. How does the law assist me to be the person I am? How does it support me to engage, free from discrimination, in the community in which I live? Recognise the relationship with the person I love and start and raise a family in South Australia? These and other questions only served to highlight the discriminatory barriers that members of the LGBTIQ communities face in their daily lives.

The desktop review found over 140 pieces of legislation that, on their face, discriminate against individuals on the basis of sex or gender diversity. The vast majority of the legislation in this category discriminates by reinforcing the binary notion of sex (‘male’ and ‘female’) or gender (‘man’ or ‘woman’) or excludes members of the LGBTIQ communities by a specific or rigid definition of gender.

The Institute’s consultations, which included use of the government’s YourSAy website, found that a much smaller number of laws have much more significant impact on people’s lives – including how they go about starting a family or their experience at work or school. They include laws regulating how sex is legally registered and changed, the legal protections against unlawful discrimination, laws governing how a couple can start a family and be recognized as legal parents, the partial defence of provocation and the legal recognition of relationships.

These laws are the focus of SALRI’s recommendations. These recommendations are described as either: ‘Recommendations for Immediate Action’ or ‘Recommendations Requiring Further Review and Report by SALRI’, to correspond with the two phases of SALRI’s response to this Reference.

Some examples of the Recommendations for Immediate Action are: interpretive changes to recognise trans and intersex individuals in our law, changes to the terminology used in our equal opportunity legislation, clarifying rules around access to artificial reproductive treatment for same sex couples and removing the ban on same sex couples being considered as prospective adoptive parents.

For those matters requiring further review, such as the laws regulating how sex is legally registered and changed and provocation, the Institute intends to conduct further targeted community consultations with a view to presenting a detailed reform framework to Government prior to June 2016.

The Audit Report has received print, radio and television coverage and was formally ‘launched’ at an event on 7 September 2015 at State Parliament to mark the 40th anniversary of the decriminalisation of homosexuality in South Australia. It has received bipartisan expressions of political support.

The Audit Report is available on the Institute’s webpage and reflects the work of a number of contributors including lead author Sarah Moulds, as well as David Plater, Louise Scarman, and Lucy Line. For further information please contact

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