OPINION: Brian Greig from just.equal looks over the McGowan Government’s contributions to the LGBTIQ+ communities during their first term in government. 

The state Labor Government is coming to the end of its first term with an election due next March. It’s time to review its performance and lay out what we should expect if it is re-elected.

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Not-with-standing the disruption caused by COVID-19, the best that can be said of the McGowan Government on LGBTI issues is that is has been very disappointing.

Let’s look at some key issues.

Expungement of historic convictions

Early in its term the McGowan Government trumpeted its Expungment Legislation with a Bill to remove the criminal records of gay men convicted under previous anti-gay laws. Expungement was important for the few people it affected. But as a largely symbolic reform it was so overdue, benign and uncontroversial that parliament voted for it unanimously, including its most horrible homophobes.

It was good that the Government matched this legislation with a formal parliamentary apology to our community, but for many the apology rang hollow given that other cruel anti-gay discrimination laws are still in place.

During the apology, Premier McGowan said: “On behalf of the Government of Western Australia, I am sorry for the hurt, for the prejudice, for the active discrimination that ruined lives… these men have lost jobs…this was State-sanctioned discrimination.”

That was September 2018, but just eleven months earlier in 2017, Craig Campbell was sacked from his teaching job in Rockingham under current anti-LGBTI laws, highlighting the tokenism of the government’s approach to “state-sanctioned discrimination.”

After this Bill passed, it was as if the government dusted its hands and said, “Well, that’s it, no more reform for you, we’ve done our bit with this easy legislation.”

Each time LGBTI advocates subsequently approached the Government for more substantive reforms, it held up the expungement legislation as its great achievement and used it as a cloak to camouflage criticism that it won’t tackle genuine reform.

Meanwhile, in other states community advocates and state Labor parties had quickly moved on to new reforms in areas like trans rights and conversion practices. As a result, WA has fallen behind.

Score: 6/10.

Safe Schools

The McGowan Government kept its promise to continue funding Safe Schools (rebadged as Inclusive Schools), but only for four years. Despite Treasurer Ben Wyatt running a $1.2 Billion surplus, the modest funding has been axed and Inclusive Schools will collapse into an online module (only available by request), with all pro-active teaching and training being cancelled.

Meanwhile, in other states, including those with Liberal Governments, Safe Schools or its equivalent continues to be funded.

Score 4/10.

Religious Exemptions

WA has the worst anti-LGBTI discrimination law in Australia. Section 73:3 of the Equal Opportunity Act (1984), permits publicly funded faith schools to refuse enrolment from rainbow families, expel LGBTI students and sack LGBTI teachers and staff.

In 2015, a seven year old girl was pushed out of a Mandurah Christian School for having two gay dads. In 2017, history teacher Craig Campbell was dumped from a Rockingham Baptist College when his sexuality became known during the equal marriage postal survey. Premier McGowan has said “the law is wrong and should be changed,” but has not introduced legislation.

LGBTI advocates who met with Attorney General John Quigley to raise this issue were given a range of excuses for inaction and delay. This included being told that the State Government had to defer to the commonwealth because Prime Minister Scott Morrison was reviewing national laws in this area and was also proposing a Federal Religious Freedom Bill. This excuse for delay is invalid. Both the federal review into religious exemptions and the proposed Federal Religious Freedom Bill have been shelved.

More importantly, the state does not have any obligation to defer to the commonwealth when shaping its anti-discrimination laws. Tasmania, Queensland and the ACT have all scrapped or modified religious exemptions for faith schools and none of these jurisdictions deferred to the commonwealth to make changes.

Under pressure from advocates, Mr Quigley agreed to review the state legislation and asked the Law Reform Commission WA to undertake this. The drafted terms of reference for ‘Project 111’ were very broad and what might have been a short review has taken almost three years. Recently Mr Quigley advised that the Commission anticipates its discussion paper will be released “by the end of March 2021 for public comment.”

This is conveniently timed for after the next election and appears politically designed to try and silence any discussion of religious exemptions between now and then, including from government MPs. Their standard dodge-response to any direct question on removing religious exemptions will be “I’m waiting to read the report.”

Score: 2/10

Trans Reform

In 2019, the legal recognition of transgender and gender diverse people seemed to be sweeping across the country. First Tasmania, then Victoria and all expectations were that WA would be next. There was excitement and optimism.  People who are transgender had real hope that finally WA would update gender recognition laws and legally recognise trans people. This would include a process to alter gender ID on official documents, including birth certificates.

The WA Labor party voted in favour of a motion calling for the WA Gender Reassignment Board to be axed back in 2017, though no action has been taken.

In 2018, the WA Law Reform Commission released a discussion paper exploring an extensive review of the state’s legislation regarding recognition of a person’s sex, and gender.

The recommendations include removing the requirement for a person to have undertaken a medical procedure to have their gender recognised, allowing people over 12 able to apply for a certificate to affirm their gender (with parental permission), and allowing for a non-binary “X” gender marker on documentation.

Despite considerable lobbying and meetings with the Attorney General, this has gone nowhere.

Score 0/10.

Conversion Practices

Queensland and the ACT have banned LGBTI conversion practices with different models. The Queensland model only covers formal medical and professional situations, not informal and religious settings. The ACT model covers both.

Given that more than 90 per cent of conversion practices are done in religious settings, the Queensland model is practically useless and the ACT model is excellent.

Queensland rushed its campaign-motivated legislation through parliament just two months out from a state election to appear ‘LGBTI friendly’ but at the same time not upset religious conservatives. The result was that it appeased neither side. Interestingly, now that Labor has been strongly returned in Queensland, the Palaszczuk Government, under pressure from LGBTIs, may revisit its Conversion Act and update it to include religious settings.

So, what’s happening in WA?

In September 2020, Greens MP Alison Xamon asked this very question of Alanna Clohesy MP, the McGowan Government’s Parliamentary Secretary for Mental Health.

In her answer, Ms Clohesy said that the government had “no current plans” to ban conversion practices.

Further, Ms Clohesy said the government was looking to, and waiting on, national reform around the regulation of counsellors (which may never happen), and was waiting to see “if it proves effective” before considering legislation to ban conversion practices.

This is a similar excuse for delay and inaction that Mr Quigley used not to address the issue of religious exemptions in schools. More importantly, WA has no need to look at what’s happening interstate and should be drafting its own laws, creating a higher benchmark and leading with progressive change.

Score: 0/10.

Blood Donation

In April 2020, the Therapeutic Drug Administration, which regulates blood donation, said it would reduce the period gay men must abstain from sex before they give blood from twelve months to three.

This is not sufficient because the science clearly shows that a policy of screening donors for safe sex rather than gay sex would make the blood supply safer and more plentiful – not to mention less discriminatory.

States need to ratify changes to blood donation and initially it seemed like WA would ask some hard questions about the science behind the TGA’s policy. Health Minister Roger Cook has previously flagged that he wanted to see change in this area, however, nothing has materialised.

Score 0/10

Health Strategy

In 2019, the Government released the state’s first ever LGBTI Health Strategy 2019-2014. This is a great initiative and may prove helpful in identifying and responding the relevant health needs. But it should not be regarded as a substitute for law reform.

In WA, the physical and mental health of LGBTI people is adversely affected by conversion practices, special religious exemptions that persecute students and teachers, the absence of anti-vilification laws, the lack of a comprehensive Inclusive Schools program, and the failure to legally recognise the existence of trans people. The LGBTI Health Strategy might address symptoms but not causes. That would require legislation and program funding.

Score 4/10

Surrogacy

In 2019, the government courageously put forward its ‘Human Reproductive Technology and Surrogacy Legislative Amendment Bill,’ knowing it would be controversial. However, technical and legal flaws in the drafting saw it unravel in committee and religious conservatives in the Upper House filibustered for days to waste time and stall the government’s legislative program. While that was predictable, in the end the government gave up but Health Minister Cook has said the Bill is still on the government’s agenda.

Score: 4/10.

General advocacy

In addition to legislation, LGBTI people like to feel engaged and supported by government MPs when it matters. In late 2020, Youth Minister Dave Kelly announced that he would formally liaise with the Youth Pride Network on LGBTI issues. This is encouraging, but it’s still a narrow initiative compared to other states.

The Tasmanian Government, for example, has four Reference Groups including Education & Health, Police, Justice Department, and Whole of Government – which includes the Premier’s Office. These reference groups have been operating since the 1990’s and are made up of LGBTI community reps and relevant government agencies.

Each Reference Group meets three times a year, attendees are remunerated, and support staff work on policy and programs. Each Reference Group has co-chairs shared between the LGBTI community and government agencies to ensure no issues are overlooked. The Premier chairs two Whole of Government meetings each year.

The most recent outcome of Tasmania’s liaison process is that its Liberal Government has funded a survey of LGBTI people to ascertain their issues and priorities, with the results being used to form an empirical basis for better policies.

By contrast, here in WA the government axed the Schools Inclusion program, the Education Minister defended this backwards step and not one backbencher spoke out.

Similarly, when Lord Mayor Basil Zempilas made his offensive and ignorant comments about trans people, there was not a word of support for this community from the Premier or Minister for Mental Health. Anti-trans outbursts by public officials don’t happen in any other state and would be less likely here if MPs showed greater leadership.

Score: 3/10.

2021 Election

With the McGowan Government riding high in the polls and on course for a thumping victory next year, there are no excuses for the reluctance, timidity and obfuscation it has shown on LGBTI issues over the previous four years.

As a community we must be bold, optimistic and uncompromising in our expectations that the next term of government will deliver a program of LGBTI reform that will catapult WA from behind other states to front of the pack.

It has been 20 years since the McGinty reforms of 2001, which saw WA leap ahead of other states on equality and non-discrimination. In recent times we have gone backwards.

We now live in a post marriage-equality world in which WA voted YES at a higher rate than the national average. It’s time for a reboot. It’s time for our LGBTI laws and programs to be modernised in line with need and public expectations.

That means raising the key issues in the lead up to the state election and not letting any candidate off the hook by failing to answer simple questions on policy. We need to know where every candidate stands and to make our voices heard.

Brian Greig is a WA spokesperson for national lobby group: just.equal.

Update: 27-11-20 This article was update to improve the language in the section on transgender rights. The initial publication of this article did not meet OUTinPerth’s standards and our team offers an apology to everyone.   

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