Lesbians, gay men and bisexuals
Approximately one in 20 or 4.5% of the population aged 16 and over Australia-wide identify as LGBTQIA+. The purpose of this section and Section 9 are to:
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highlight for judicial officers some common misconceptions made about the LGBTQIA+ community, provide some explanations and terminology and discuss how they may impact access to justice, and
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provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.
8.1 Some statistics1
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LGBTIQA+ people are not a homogenous population. Each group in the acronym has unique needs and experiences as does each individual in the group. There may also be intersectionality in that a transgender person may also be gay.2
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Proportion of the population — There are few reliable statistics on the number of LGBTQIA+ people resident in NSW. In 2022, the Australian Bureau of Statistics (ABS) conducted a health survey in which people were asked about their sexual orientation. Based on the responses of nearly 45,000 people, the ABS estimates that 4.5% of the adult population, ie over 16, Australia-wide identify as LGBTQIA+. Identification varied by age with a higher rate of 10% in the 16–24 age group.3
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Discrimination — There is little doubt that LGBTQIA+ people are discriminated against more than heterosexuals and cisgender people. Only in 1973, the Australian Medical Association removed homosexuality from its list of illnesses and disorders. In 1992, the Australian Defence Force removed a ban on military service by gays and lesbians.4 In 2023–2024, 27.9% of all complaints, the second highest group, to the Anti-Discrimination Board of NSW consisted of “other discrimination” which included “transgender, homosexuality … homosexual vilification, transgender vilification”.5
Discrimination has a negative effect on the health and productivity of LGBTQIA+ people. The NSW LGBTIQ+ Health Strategy 2022–2027 identified significantly poor health and wellbeing outcomes for LGBTQIA+ people in NSW due to chronic exposure to discrimination and stigma.6 The statistics show increased mental health problems, including depression, anxiety disorders, self-harm and suicide, suicidal ideation due to discrimination, stigma and abuse.7
In November 2017, the Federal Government held the Australian Marriage Law Postal Survey which canvassed attitudes of voters towards amending the Marriage Act 1961 (Cth) by asking the question, “Should the law be changed to allow same-sex couples to marry?”. A “yes” or “no” answer was required. The survey returned a 61.6% Yes vote. This result has been heralded as a major breakthrough for LGBTQIA+ rights in Australia. On 9 December 2017, the main amendments to the Marriage Act 1961 by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) commenced to legalise same-sex marriage in Australia.8
See further 8.3.3 Legal protections.
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Verbal abuse, intimidation and violence — the LGBTQIA+ community experiences much greater levels of verbal abuse and violence than heterosexuals or cisgendered people. Many LGBTQIA+ people remain reluctant to report verbal abuse or violence for a variety of reasons, including fear of a homophobic or transphobic response, fear of “outing” themselves, fear of a distressing investigation process, a belief that little can be done, and concerns about privacy and security.9
Amendments to the Crimes (Personal and Domestic Violence) Act 2007 (NSW) (CPDV Act), commenced 1 December 2024, include “outing” as conduct that may amount to harassment which is included in the definition of intimidation for the purposes of obtaining a protection order under s 7 CPDV Act. See further 8.3.3 Legal protections.
In a 2021 Report,10 the NSW Legislative Council’s Standing Committee on Social Issues noted that there were 79 incidents of hate crime reported over the past 12 months by LGBTQIA+ people. This accounts for 16% of all recorded hate crime involvements, events and information received by police. There is also significant underreporting of such incidents. The Committee also noted a trend of increased violence and harassment experienced by LGBTQIA+ people, and poorer health outcomes experienced as a result.11
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Sackar Special Commission of Inquiry into LGBTIQ hate crimes
Violent assaults on the LGBTQIA+ community, colloquially known as “gay bashings” in Sydney between 1970 and 2010, were the subject of a Special Commission of Inquiry (Commissioner, the Hon John Sackar) announced by the NSW Government in late 2021 and finalised in December 2023. This was established following a recommendation of the NSW Legislative Council’s Standing Committee on Social Issues Final Report into Gay and Transgender Hate Crimes.12
The inquiry investigated 34 suspicious deaths or unsolved murders of LGBTQIA+ people in this period, particularly young gay men, and made 19 recommendations, including holding fresh inquests into the deaths of several men. The report highlighted deficiencies in police investigations and the “shameful homophobia, transphobia and prejudice” in society and within the NSW Police Force.13 The report recommends additional mandatory and ongoing training be provided to NSWPF officers concerning the LGBTQIA+ community about the indicia of LGBTQIA+ bias crime, cultural awareness, trauma-informed communication with family and loved ones of victims, and the role of conscious and unconscious bias.14
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Family support — some in the LGBTQIA+ community have lost touch with their families and/or previous friends after “coming out”. Some people leave school (see under “education” below) and home due to lack of support.
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Health — surveys conducted during the development of the NSW LGBTIQ+ Health Strategy revealed lower self-ratings of health and wellbeing for LGBTIQ+ people, compared to the general population.15These health outcomes are directly related to experiences of stigma, prejudice, discrimination and abuse on the basis of being LGBTQIA+.16
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Suicide attempts and ideation and self-harm of young people — national statistics show that 16% of LGBTQIA+ young people reported that they had attempted suicide or had suicidal ideation (thoughts) with those who experience abuse and harassment even more likely to make a suicide attempt. Equally, 15.4% of LGBTQIA+ young people reported that they had current thoughts of suicide in the last two weeks. 33% reported having self-harmed and 41% had thoughts of harming themselves.17
LGBTQIA+ people have an increased risk of depression and anxiety, substance abuse, self-harming and suicidal thoughts.18 Two-thirds of LGBTQIA+ people in NSW have experienced a mental health condition; 25% experience suicidal thoughts and almost 1 in 10 had self-harmed.
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“Coming out” — some people take much longer to “come out” than others. Some never fully “come out”. Some have had heterosexual relationships before coming out. Others have never had any heterosexual sexual experience.
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Self-censorship — because of the discrimination that LGBTQIA+ people often experience, many are not completely open or “out” about their sexuality. They adopt a practice of self-censorship in at least some part of their everyday life — for example, they may limit discussion of weekend activities and change the pronoun when referring to a partner or lover, or never hold hands in public.19 This is likely to be even more the case in a formal setting such as a court. Some people choose not to live with their (sometimes long-term) partner through fear of public exposure, and some live together but do not identify as living in a same-sex relationship.20
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Education — those who started to “come out” at school, or who were recognised by other students as different, may not have been able to reach their full educational potential.21
There are connections between early school leaving, poor educational attainment and homophobic bullying.22
Around 10% of young Australians experience same-sex attraction, most realising this around puberty. They may be more likely to experience bullying at school and/or greater difficulty connecting with others. In an Australian study, 61% of young non-heterosexual people reported experiencing verbal abuse and 18% reported physical abuse.23
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Children — an increasing number of LGBTQIA+ individuals and couples live with children — these children may be from previous heterosexual relationships, foster children, children born through surrogacy arrangements, co-parenting arrangements, or children born using artificial or self-insemination.24
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Regional, rural and remote communities — the issues faced by LGBTQIA+ people in rural and regional communities are often heightened. There may often be limited or no access to a “community” — “an identified, visible group of LGBTQIA+ people coming together”. “So those issues around homophobia and visibility can be more acute in regional and rural areas. So if you are a victim of violence or harassment then those issues about reporting just become magnified for those communities”.25
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In all other respects — people in the LGBTQIA+ community are as diverse as any other people in relation to their level of education, employment status, religious affiliation, ethnic or migrant background, whether or not they have a partner or indulge in sexual activity at all, levels of domestic violence, mental and physical heath, criminality etc. Their sexuality is simply one (albeit important) facet of their make up.
8.2 Some information
8.2.1 Common misconceptions
There are many stereotypes and false assumptions made about people in the LGBTQIA+ community. Some of the most common are:
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You can tell if someone is lesbian or gay (and possibly if they are bisexual) because they look and/or behave more like people of the opposite sex, or in a “gay” way — assumptions should never be made about a person’s sexuality based on their actions, appearance or behaviour.
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In lesbian and gay male couples, one is more masculine and takes the traditional male role and the other is more feminine and takes the traditional female role — the form of lesbian and gay male couple relationships is as varied as the form of heterosexual couple relationships.
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Gay men are more likely to sexually abuse children or youths — children and young people who are sexually abused are most commonly abused by an adult of the opposite sex. There is no research evidence that homosexual men are any more likely to sexually abuse boys aged under 18 than heterosexual men are likely to sexually abuse girls aged under 18.26 In addition, men who sexually abuse boys aged under 18 “are not necessarily homosexual. They are sexually attracted to children”.27
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Homosexuality breeds homosexuality/lesbianism and gay men make bad parents — there is absolutely no evidence that gay or lesbian parents produce greater numbers of gay/lesbian children than heterosexual parents.
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Lesbians, gay men and bisexuals could choose to be heterosexual — note that since 4 April 2025, conversion practices are banned in NSW. See further 8.3 Legal protections.
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People who call themselves bisexual are really gay or lesbian but do not want or dare to describe themselves as such, or they are really heterosexual but just like the idea of describing themselves as capable of having sexual relationships with anyone — bisexuals “live their lives in a diverse range of ways, including remaining single, marrying, and having a same-sex partner. They may engage in sexual activity with partners of the same sex, the opposite sex or partners of both sexes”28 — at the same time or sequentially. They are therefore too diverse to categorise in either of these ways.
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Same-sex relationships do not have the same significance as heterosexual relationships — same-sex relationships have the same significance to each partner (and any children living with the couple) as heterosexual relationships (and families) do to heterosexuals. To accord them less significance because they are same-sex, do not fit the “norm”, or do not match the way heterosexuals arrange their everyday life is unfair and discriminatory.
8.2.2 Explanations and terminology
8.2.2.1 Homosexuality and homosexual
“Homosexuality” is used to describe both lesbian and gay male sexuality — that is, as a term for people who are sexually and emotionally attracted to people of the same sex.
“Homosexual” is used as either an adjective or a noun to refer to both a lesbian and a gay man.
However, many lesbians regard both these words as male and exclusive of women. Some gay men prefer to use “gay man”, “gay male”, or “gay” — see 8.2.2.2.
“LGBTQIA+” refers collectively to people who are lesbian, gay, bisexual, transgender, intersex, asexual and/or queer. See also Section 9.
8.2.2.2 Gay
“Gay” is a term mostly used to describe men whose primary emotional and sexual attraction is towards other men. However, it can be used to describe both men and women who are attracted towards people of the same sex.29 While technically an adjective, it is often used as a noun as well — particularly when used in the plural — “gays”.
Again, some lesbians prefer the term lesbian instead.
The term “gay man” is the closest match for the term “lesbian”.
8.2.2.3 Lesbianism and lesbian
A lesbian is a woman whose primary emotional and sexual attraction is towards another woman.30 “Lesbianism” (as opposed to “homosexuality”) and “lesbian” as opposed to “homosexual” or “gay”, are preferred terms.
8.2.2.4 Coming out, out, outed and closeted
“Coming out” is used to describe the process of being able to openly describe oneself as lesbian or gay and then live openly, or relatively openly, as lesbian or gay. All forms of the verb are used depending on the tense required.
Someone who has “come out” may be described as “out”.
People who have “come out” are sometimes said to have come “out of the closet”.
Those who are not open about their sexuality are described as “in the closet” or “closeted”.
People who are closeted are sometimes “outed” (that is, publicly named as lesbian or gay) — usually by others who wish to embarrass them, shame them or for political purposes.
8.2.2.5 Same-sex relationships
A relationship between two people of the same sex.
8.2.2.6 Homophobia and lesbophobia
“Homophobia” (literally fear of homosexuals/homosexuality) describes the inability of others to tolerate lesbians and gays and accept that they should be treated fairly and their different needs allowed for. It embraces discriminatory views and actions.
“Lesbophobia” is preferred by some lesbians when describing homophobia towards lesbians.
8.2.2.7 Queer and queer-identifying
Some (particularly younger) gay men, lesbians and bisexuals use “queer”, and/or “queer-identifying”, as both nouns and adjectives, to describe anyone who is not completely heterosexual.
8.2.2.8 Bisexuality and bisexual
“Bisexuality” describes the sexuality of people who are sexually and emotionally attracted to members of both sexes.
“Bisexual” is used (as a noun and adjectivally) to describe people who are sexually and emotionally attracted to members of both sexes.
8.2.2.9 Straight and bent
Lesbians, gay men and bisexuals may use “straight” to describe heterosexuals, and its opposite “bent” to describe themselves. It is generally not appropriate to use “bent” unless you are lesbian, gay, or bisexual, or have been given specific permission to use the particular term.
8.2.2.10 Other terms
Other terms used to describe lesbians and gay men, such as “dyke”, “lemon”, “leso”, “poof”, “poofter”, “fag”, “faggot”, “camp”, “fairy”, “butch”, “queen” and “femme” are insulting unless you identify as such, or have been given specific permission to use the particular term.
8.3 Legal protections and recognition
8.3.1 Age of consent
The age of consent in NSW is now the same for everyone, whether heterosexual, bisexual, lesbian or gay — that is, 16 years.31
8.3.2 Same-sex relationships
The definition of “marriage” in the Marriage Act 1961 (Cth) excluded same-sex unions until 2017. After the success of the “Yes” campaign in the Australian Marriage Postal Survey, on 9 December 2017, the main amendments to the Marriage Act 1961 by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) commenced to legalise same-sex marriage:32 see 8.1 for further discussion of the Australian Marriage Postal Survey.
Previously, s 88EA of the Marriage Act did not recognise a union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman. Section 88EA was repealed by the Marriage Amendment (Definition and Religious Freedoms) Act 2017.33
Same-sex couples who live together as de facto couple enjoy many of the same rights as heterosexual de facto couples. However:
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Those who live apart generally do not have the same rights, despite the fact that it is more common for same-sex couples to choose not to live together — sometimes for fear of being recognised as lesbian or gay. For example, the Health Insurance Act 1973 (Cth) requires that for a person to be recognised as a spouse, they must not live, on a permanent basis, separately and apart from that person.
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To gain access to some of these rights, same-sex couples must provide significant proof that they are in a de facto relationship. They may need to provide evidence of living and child care arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and the reputation and public aspects of the relationship.34
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Same-sex couples who are parenting can both be recognised as legal parents in some circumstances. For example, a lesbian couple who plan and conceive a child together can both be recognised as parents on a child’s birth certificate in NSW.35 The Family Law Act 1975 (Cth) recognises same-sex couples as parents.36 In some cases, the courts have held that contrary to the intentions of the same-sex couple or express agreements with another, a person who has donated sperm is a parent in the circumstances of the case. In Masson v Parsons,37 where the appellant provided semen to the respondent (who was in a same-sex relationship), so that she could conceive a child through artificial insemination, the High Court determined that the appellant was a parent of his daughter, and that s 60H of the Family Law Act, which provides rules in relation to parentage of children born via artificial conception procedures, is not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure. The appellant had provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent; and that he would, as her parent, support and care for her, as since her birth, he has done. To characterise the appellant as a “sperm donor” was in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.38 See also ND v BM39 where a lesbian couple had an express agreement with a man that he was to be a sperm donor with no legal rights or liabilities. The Family Court held that the fact that the pregnancy was achieved through sex rather than assisted conception meant that the legal presumption of parental status applied, regardless of the intentions of all concerned to the contrary.
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To access IVF treatment or reproductive technologies through Medicare, a woman must be diagnosed as “medically infertile”. Medicare rebates for these types of treatments are unavailable to a woman who has no pre-existing fertility condition. This means women in same-sex relationships who have no infertility condition would be unable to access benefits to conceive a child. Medicare rebates are also not available for surrogacy arrangements.
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Same-sex couples may also need to prove they are in a de facto relationship to be able to make care and treatment decisions on behalf of a partner; to be listed as a spouse on a death certificate and be involved in funeral planning and to be provided for under an estate when the partner dies without leaving a will.40
8.3.3 Legal protections
8.3.3.1 Historical context
Decriminalisation
South Australia was the first Australian State to decriminalise homosexuality in November 1976. While NSW passed anti-discrimination laws protecting homosexual people in 1982,41 decriminalisation did not occur until the Crimes (Amendment) Act 1984 (NSW) was passed in 1984. This amended ss 79 and 80 Crimes Act 1900 (NSW) and omitted references to “buggery”. This meant that in NSW, for two years, homosexuality was not a ground for dismissal from employment but was a ground for potential incarceration.
Former homosexual advance defence/homosexual panic defence
Formerly, the use of the so-called “homosexual advance defence” and “homosexual panic defence”42 as a mitigating factor in relation to violent behaviour towards someone who is or was perceived to be homosexual was used as a defence of provocation, but it has since been removed in every Australian jurisdiction as a result of legal reform. The defence has not been available in NSW since 13 June 2014. Section 23(3) Crimes Act 1900 excludes conduct from being provocative if the conduct was a non-violent sexual advance to the accused, or the accused incited the conduct in order to provide an excuse to use violence against the deceased.43
There remains a partial defence of extreme provocation under s 23 Crimes Act 1900, commenced 13 June 2014. See Notes — extreme provocation at [6-444] Criminal Trial Courts Bench Book.
8.3.3.2 Current protections
State protections
Anti-Discrimination Act 1977 (NSW)
Anti-discrimination laws proscribing discrimination on the ground of homosexuality were first passed in NSW in Pt 4C Anti-Discrimination Act 1977.44 Direct and indirect discrimination on the ground of homosexuality is defined in s 49ZG(1) as when the perpetrator:
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treats an aggrieved person or their relative or associate less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks is a homosexual person, or
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requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case.
Protections against discrimination on the ground of homosexuality occur in areas including work,45 education,46 provision of goods and services47 accommodation48 and the provision of access or benefits by registered clubs.49
Homosexual vilification is proscribed by s 49ZT which makes it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. A public act is defined in s 49ZS to include any form of communication to the public, any conduct observable by the public and the distribution of any matter to the public.
Vilification on the grounds of being HIV/AIDS infected or thought to be HIV/AIDS infected is proscribed by s 49ZXB. This makes it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. A public act is defined in s 49ZXA to include any form of communication to the public, any conduct observable by the public and the distribution of any matter to the public.
Crimes (Personal and Domestic Violence) Act 2007 (NSW)
The Equality Legislation Amendment (LGBTIQA+) Act 2024 (NSW) amended a number of Acts to modernise laws and advance equality of LGBTQIA+ persons.
Schedule 350 amended s 7 Crimes (Personal and Domestic Violence) Act 2007 (meaning of intimidation) to insert an example of conduct that may amount to harassment, including intentionally disclosing or threatening to disclose without a person’s consent the person’s sexual orientation: s 7(1)(a).
Crimes (Sentencing Procedure) Act 1999 (NSW)
Section 21A(2) Crimes (Sentencing Procedure) Act 1999 provides that an aggravating factor the court must take into account in determining the appropriate sentence for an offence includes where the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged including people of a particular sexual orientation: s 21A(2)(h). See also 8.3.3 Legal protections.
Conversion Practices Ban Act 2024 (NSW)
The Conversion Practices Ban Act 202451 makes it an offence to engage in conversion practices with the intention of changing or suppressing an individual’s sexual orientation or gender identity. The Act also establishes a civil complaints scheme to provide avenues and processes for redress for individuals and representative bodies if they have a complaint under the Act. The civil process provides for the Anti-Discrimination Board to deal with reports through education, mediation and in cases of serious or systemic practices, through orders enforced by NCAT.
Section 5 creates an offence with a maximum penalty of 5 years in relation to conversion practices when substantial mental or physical harm is caused to the individual that endangers their life. Section 6 creates an offence with a maximum penalty of 3 years or 100 penalty units or both of taking individuals from NSW or engaging a person outside NSW for conversion practice to a person in NSW.
Federal protections
Criminal Code Act 1995 (Cth)
Groups that are distinguished by sexual orientation are protected groups for the purposes of “hate crimes” offences in the Criminal Code Act 1995, Ch 5, Div 80.
Offences in Ch 5, Div 80, Subdiv C proscribe certain offences against a targeted group and members of targeted groups. A member of a targeted group is distinguished by sex, sexual orientation, gender identity, intersex status and disability. Offences include:
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advocating force or violence against a targeted group: s 80.2A
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advocating force or violence against members of targeted groups or close associates: s 80.2B
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threatening force or violence against targeted groups: s 80.2BA
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threatening force or violence against members of targeted groups or close associates: s 80.2BB
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advocating damage to or destruction of real property or motor vehicle owned or occupied by a member or close associate of a targeted group and being reckless as to whether the damage or destruction will occur: s 80.2BC, and
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threatening damage to or destruction of real property or motor vehicle owned or occupied by a member of a targeted group or close associate: s 80.2BD.
The fault element for each offence is whether the person who advocates the use of force or violence does so reckless as to whether force or violence will occur.52 See also 8.3.3 Legal protections.
Sex Discrimination Act 1984 (Cth)
The Australian Human Rights Commission (AHRC) released a Discussion Paper in October 2010 and announced a consultation into federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity.53 In 2013, the Sex Discrimination Act 1984 (Cth) was amended by inserting s 5A.54 This provision makes it unlawful to discriminate directly against a person on the basis of sexual orientation under federal law.55 Indirect discrimination is subject to the reasonableness test in s 7B. Same-sex couples are protected from discrimination under the amended definition of “marital or relationship status” which incorporates the definition from s 2F Acts Interpretation Act 1901 (Cth).
These amendments56 seek to bridge the gap in coverage between the States and territories and the Commonwealth and introduce more inclusive definitions with the addition of the new ground of intersex status.57 A complaint mechanism is available through the AHRC if someone has been discriminated against on the basis of their sexuality or gender status.58
8.4 The possible impact of a person’s sexual orientation and/or gender in court
The discrimination and abuse that many LGBTQIA+ people have experienced (often many times) may make some of them more likely to name any perceived problem, or any perceived difference in treatment as being a form of sexuality discrimination, even when it is not. However, if you follow the guidance provided in 8.5, below, this should be less likely to occur.
In addition, unless appropriate account is taken of any needs specific to their sexuality and/or gender, LGBTQIA+ people are likely to:
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Feel uncomfortable, resentful or offended by what occurs in court.
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Feel that an injustice has occurred.
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In some cases be treated unfairly and/or unjustly.
Section 8.5, following, provides additional information and practical guidance about ways of treating LGBTQIA+ people, so as to reduce the likelihood of these problems occurring.
8.5 Practical considerations
8.5.1 Appearance and behaviour
8.5.2 Language and terminology
8.5.3 The impact of a person’s sexual orientation on any behaviour relevant to the matter(s) before the court
8.5.4 Directions to the jury — points to consider
As indicated at various points in 8.5, it is important that you ensure that the jury does not allow any bias, stereotyped or false assumptions unfairly influence their judgment.
8.5.5 Sentencing, other decisions and judgment or decision writing — points to consider
8.6 Further information or help
Organisations that can provide information or expertise about lesbianism, homosexuality or bisexuality or related issues, are:
Inner City Legal Centre
(Includes Gay and Lesbian Advice Service)
Street Address:
Basement, Kings Cross Library
50–52 Darlinghurst Rd
Kings Cross NSW 2011
Postal Address:
PO Box 25
Potts Point NSW 1335
Phone: 02 9332 1966
8.7 Further reading
Australian Bureau of Statistics, Year Book Australia, 2012, ABS Cat No 1301.0, 2012.
Australian Bureau of Statistics, Couples in Australia, 4102.0 — Australian Social Trends, July 2013, accessed 31/3/2025.
Anti-Discrimination Board of NSW, Annual Reports, accessed 31/3/2025.
Australian Medical Association, LGBTQIASB+ Health Position Statement, 2023, accessed 31/3/2025.
M Flood and C Hamilton, Mapping homophobia in Australia, Australia Institute Webpaper, 2005, accessed 31/3/2025.
Twenty10 incorporating Gay and Lesbian Counselling Service, accessed 31/3/2025.
R Graycar and J Morgan, The hidden gender of law, 2nd ed, The Federation Press, 2002.
Judicial Studies Board, Equal Treatment Bench Book, 3rd edn, 2013, Pt 12, “Sexual orientation”, accessed 31/3/2025.
J Millbank, Meet the parents: a review of the research on lesbian and gay families, 2002, accessed 31/3/2025.
CJ Simone, “Kill(er) man was a battered wife: The application of battered woman syndrome to homosexual defendants: The Queen v McEwen” (1997) 19 Sydney Law Review 230, p 235.
MR Stevenson, “Public policy, homosexuality and the sexual coercion of children” (2000) 12(4) Journal of Psychology & Human Sexuality at 1–19.
Supreme Court of Queensland, Equal Treatment Benchbook, 2016, “Chapter 15: Gender Identity and Sexual Orientation”, accessed 31/3/2025.
8.8 Your comments
The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.
We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.
In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.
Section 15 contains information about how to send us your feedback.
1Unless otherwise indicated, these statistics are drawn from information on the Twenty10 incorporating Gay and Lesbian Counselling Service’s website, accessed 26/3/2025.
2NSW Health, NSW LGBTIQ+ Health Strategy 2022–2027, p 12, accessed 18/3/2025.
3Australian Bureau of Statistics, “Estimates and characteristics of LGBTI+ populations in Australia”, 19/12/2024, accessed 18/3/2025.
4NSW Health, NSW LGBTIQ+ Health Strategy 2022–2027, 2022, p 4, accessed 18/3/2025.
5Anti-Discrimination Board of NSW, Annual Report 2023–24, p 17, accessed 31/3/2025.
6NSW Health, NSW LGBTIQ+ Health Strategy 2022–2027, 2022, p 12, accessed 18/3/2025.
7W Leonard, et al, Private Lives 2: The Second National Survey of the Health and Wellbeing of GLBT Australians, Australian Research Centre in Sex, Health & Society, accessed 18/3/2025.
8Schedule 1, Pts 1 and 2 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) commenced 9/12/2017.
9NSW Attorney General’s Department, You shouldn’t have to hide to be safe — A report on homophobic hostilities and violence against gay men and lesbians in NSW, 2003, pp xi, 23.
10NSW Legislative Council Standing Committee on Social Issues, Final Report into Gay and Transgender Hate Crimes between 1970 and 2010, Report 58, May 2021, p 48 accessed 27/3/2025.
11ibid, p 51.
12J Sackar, Special Commission of Inquiry into LGBTIQ hate crimes, 18 December 2023, accessed 18/3/2025.
13ibid, Vol 1, p 2.
14J Sackar, Special Commission of Inquiry into LGBTIQ hate crimes, 18 December 2023, Recommendation 8, Vol 1, p 42. See also Recommendations 15(a) and 19(a), accessed 18/3/2025.
15NSW Health, NSW LGBTIQ+ Health Strategy 2022-2027, 2022, p 12, accessed 18/3/2025.
16LGBTIQ+ Health Australia, “Snapshot of mental health and suicide prevention statistics for LGBTIQ+ people”, 13 May 2021, accessed 27/3/2025.
17LGBTIQ+ Health Australia, “Snapshot of Mental health and suicide prevention statistics for LGBTI people”, July 2016, accessed 27/3/2025. See further LGBTIQ+ Health Australia, “Snapshot of mental health and suicide prevention statistics for LGBTIQ+ people”, accessed 27/3/2025 for a 2021 update which breaks down the percentage based on LGBTQIA+, transgender and gender diverse statistics, comparing them to the general population.
18Beyond Blue, “LGBTIQ+ mental health”, accessed 27/3/2025.
19A Chapman, “Sexuality and workplace oppression” (1995) 20 MULR 311, p 315; Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, 2016–, p 247.
20There was an Australia-wide increase of 32% of same-sex couples identifying as such since 2006 representing 1% of all couples in Australia. In the 15 years between 1996 and 2011, the number of same-sex couples more than tripled: Australian Bureau of Statistics, Couples in Australia, 4102.0 — Australian Social Trends, July 2013, accessed 27/3/2025.
21M Kaye, “Skool’s Out” (2007) 15(1) Teaching Education.
22Department of Education and Communities, Formative evaluation of the NSW Proud Schools Pilot: Stage 2, Final Report, 2014.
23K Robinson et al, “Growing up queer: issues facing young Australians who are gender variant and sexuality diverse”, Young and Well Cooperative Research Centre, 2014, p V.
24J Millbank, Meet the parents: a review of the research on lesbian and gay families, Gay and Lesbian Rights Lobby, 2002, accessed 27/3/2025.
25NSW Legislative Council Standing Committee on Social Issues, Final Report into Gay and Transgender Hate Crimes between 1970 and 2010, Report 58, May 2021, p 52, accessed 31/3/2025.
26MR Stevenson, “Public policy, homosexuality and the sexual coercion of children” (2000) 12(4) Journal of Psychology & Human Sexuality 1–19.
27B Adair, “Child sexual assault” (1996) 8(5) JOB 33 at 33.
28Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, 2016–, p 250.
29Beyond blue, “Statistics”, accessed 27/3/2025.
30ibid.
31Crimes Act 1900 (NSW), s 66C.
32Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), Sch 1, Pts 1 and 2, commenced on 9 December 2017.
33ibid, Sch 1, Pt 1, cl 58.
34Family Law Act 1975 (Cth), s 4AA(2).
35Births, Deaths and Marriages Registration Act 1995 (NSW), arising from amendments made by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW), commenced 22 September 2008.
36Family Law Act 1975 s 18 as amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth). This Act amended about 85 Commonwealth laws to take account of same sex relationships and give same sex couples in a de facto relationship or registered relationship the same rights as de facto opposite sex couples.
37Masson v Parsons (2019) 266 CLR 554.
38ibid, [54].
39ND v BM [2003] FamCA 469.
40H Robert and F Kelly, “The legal benefits of being married”, La Trobe University, 21 September 2017, accessed 27/3/2025.
41Anti-Discrimination Act 1977 (NSW), Pt 4C, assented 12/12/1982.
42Although no such defence exists at law, the term “homosexual advance defence” is used to describe those “cases in which criminal defendants have claimed they acted either in self-defence or under provocation when committing acts of violence against homosexual men who had made sexual advances towards them”: J Keane, Sentenced homicides in New South Wales 1994–2001, Research Monograph 23, Judicial Commission of NSW, January 2004, p 98. The term “homosexual panic defence” is used to describe the uncontrollably violent response of a person to a homosexual advance and operates as “some form of insanity or diminished capacity defence”: Criminal Law Review Division, Homosexual advance defence: final report of the Working Party, 1998, at [2.2], accessed 25/2/2025. As to the pre-13/6/2014 position see: Green v The Queen (1997) 191 CLR 334. In this case, the High Court “upheld the view that the defence of provocation may be available to a person who kills in response to a non-violent homosexual advance”: Supreme Court of Queensland, Equal Treatment Benchbook, p 254 — but see Kirby J’s powerful dissenting view in this case and similar comments by McPherson JA in R v Irving [2004] QCA 305. See also I Potas, “Sexuality-related hate crime” (2004) 16(3) JOB 18.
44Anti-Discrimination Act 1977 (NSW), assented 12/12/1982.
45Anti-Discrimination Act 1977 (NSW), Div 2.
46Anti-Discrimination Act 1977 (NSW), s 49ZO.
47Anti-Discrimination Act 1977 (NSW), s 49ZP.
48Anti-Discrimination Act 1977 (NSW), s 49ZQ.
49Anti-Discrimination Act 1977 (NSW), s 49ZR.
50Commenced 1/12/2024.
51Assented to 3/4/2024, commenced 4/4/2025.
52Recklessness was introduced as the fault element by the Criminal Code Amendment (Hate Crimes) Act 2025, commenced 8/2/2025.
53The final consultation report was released in 2011: AHRC, Addressing sexual orientation and sex and/or gender identity discrimination, Consultation report, 2011, accessed 28/2/2025.
54Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth). Protections for same-sex relationships were also introduced in 2008 Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth).
55Sex Discrimination Act 1984 (Cth), s 5A(1), (2).
56Second Reading Speech, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, Commonwealth, House of Representatives, Debates, 21/3/2013, p 2893.
57AHRC, “New protection against discrimination on the basis of sexual orientation, gender identity and intersex status”, 1/8/2013, accessed 25/2/2025.
58See AHRC, “Complaints under the Sex Discrimination Act: sexual orientation”, accessed 25/2/2025.
59Note that Evidence Act 1995 (NSW), s 41 provides that a judicial officer must disallow improper questions (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, humiliating or repetitive) questions and also provides that questions must not be put to a witness in a “manner or tone that is belittling, insulting or otherwise inappropriate” or “has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability”). Sections 26 and 29(1) of the Evidence Act 1995 also enable the court to control the way in which witnesses are questioned, the manner and form of questioning of witnesses, and Evidence Act 1995, s 135(b) allows you to exclude any evidence that is unfairly prejudicial to a party or is misleading or confusing.
60Commenced 22/4/2024.
61Commenced 27/5/2024.
63ibid.
64M Campo and S Tayton, “Intimate partner violence in lesbian, gay, bisexual, trans, intersex and queer communities”, December 2015, Australian Institute of Family Studies, December 2015, accessed 31/3/2025.
66Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2nd edn, 2002–.
67Judicial Commission of NSW, Local Courts Bench Book, 1988–.
68See also Judicial Commission NSW, Sentencing Bench Book, 2006–, at [1-000], and R v Henry (1999) 46 NSWLR 346 at [10]–[11].
69See Div 2, Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Charter of Victims Rights (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the prisoner to read, but the prisoner must not be allowed to retain it.
70Crimes (Sentencing Procedure) Act 1999 (NSW), s 30A.