Inclusion and Diversity Note from the Diversity and Equality Committee

10/09/2020

Meeting the legal service needs of LGBTQI clients

NSW barristers would do well to review a recent report from the LGBTIQ Legal Service which analysed the legal needs of Victoria’s LGBTIQ community. Estimated to account for around 11% of the Australian population, LGBTIQ people have complex and unique legal requirements which are compounded by access to justice barriers. They disproportionately experience discrimination, harassment, violence, social exclusion, substance abuse, mental illness and homelessness.

The LGBTIQ community typically experience legal issues that specifically relate to their identity or status, including discrimination because of their sexual orientation, gender identity, HIV status or lawful sexual activity. Furthermore, LGBTIQ people can be members of other communities, including Aboriginal and Torres Strait Islander, multicultural and multifaith backgrounds or have lived experience of disability. Trans and gender-diverse people might be placed in a prison that does not align with their gender identity, making them vulnerable to violence and unable to obtain healthcare. LGBTIQ communities in regional areas experience difficulties accessing services, ensuring confidentiality and encounter social isolation.

The legal needs of LGBTIQ clients encompass multiple practice areas. These include health or privacy complaints, employment law (particularly discrimination), family matters (including property, adoption or family violence), social security access, criminal law (including expunging historic convictions), refugee law, residential tenancy issues, neighbourhood or consumer disputes and administrative law (such as change of name or sex markers and identity documents).

LGBTIQ clients sometimes prefer LGBTIQ legal practitioners. They are considered to have a better understanding of LGBTIQ+ history, a pre-existing and informed awareness of specific issues, greater sensitivity, empathy and trustworthiness, and are more likely to possess an intersectional perspective. Access to practitioners who understand and respect their identity and relationships, and who can clearly explain court processes and provide targeted referrals (including to LGBTIQ-specific services) were highly valued. This perspective affirms the recommendation of an earlier study which called upon State and territory governments to support, fund and expand specialist LGBTI+ legal services with a view to overcoming marginalisation of this group within the broader community (Law Council of Australia, Justice Project, Recommendations and Priorities: LGBTI+ People Chapter, Final Report, 2018, p20). The report made several recommendations which are potentially relevant for NSW barristers and chambers. These include:

• The legal sector should prioritise meaningful co-design and partnerships which reflect listening, understanding and flexibility. Strategic law reform and policy projects can be undertaken to address legal inequality and inconsistency. An effective response required collaboration between legal services and non-legal sectors.

• All barristers could be trained to appreciate the particular needs of LGBTIQ clients with a view to providing appropriate support as well as in-court representation. Such efforts would complement existing initiatives such as the Magistrates’ Court of Victoria, which in 2018 introduced the LGBTIQ Family Violence Applicant and Respondent Practitioner Service which aims to ensure that court staff provide timely, specialist and integrated responses in respectful and inclusive ways to LGBTIQ people when they come into contact with the court (Annual Report 2018-19, pp24-5, 31).

• All chambers must be safe, inclusive and responsive workplaces for all gender and sexuality identities. The NSW Bar Association’s Advocates for Change program – within which Andrew Pickles SC advocates for LGBTIQ diversity - recognises that an inclusive profession depends on creating the conditions and cultures that enable persons with varying backgrounds and attributes to excel at the NSW Bar.

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