Why a former High Court judge is 'very concerned' about attacks on these Australians

SBS Australia

17-05-2025

Former High Court justice Michael Kirby says he's very concerned about transphobic attitudes in Australia. Source: Getty / Graham Denholm Human rights lawyer Michael Kirby says there's no chance he would have had a legal career, let alone become a high-profile High Court justice, had he come out as gay as a young man. On at least a weekly basis at that time, the front pages of newspapers were filled with stories about LGBTIQ+ people "who had been entrapped by police and humiliated and denounced", Kirby says. "There were no openly LGBTIQ people in federal parliament or in public life. It was an oppressive law, which was enforced," he says of life in Australia prior to homosexuality being decriminalised. "It was difficult to make any real progress on LGBTIQ+ rights and equality so long as you had criminal laws in place ... there was great distaste and dislike, even hatred, in Australian society," Kirby says.
Most members of the public tended to think gay people were an abomination "as it said in the Bible" and there was an enormous resistance to change in Australia, Kirby says, adding that this sentiment didn't begin to abate until Gough Whitlam became prime minister in 1972 and led a raft of social reforms. "Gays were not alone in this respect — there were similar feelings to people of different racial origins … But the thing that was peculiar about gay people was that there were actual criminal laws and therefore if you made any indication that you were gay, you were subjecting yourself to attack on the grounds of illegality." In New South Wales, where Kirby has lived most of his life, laws that strictly outlawed sexual contact between people of the same sex were only abolished in 1984. Though Kirby didn't openly acknowledge his sexuality for most of his career, he did speak about LGBTIQ+ equality as a human rights issue and aligned himself with causes like developing strategies to combat HIV/AIDS and fighting the disease's stigma.
In an interview with SBS News ahead of International Day against Homophobia, Biphobia, Interphobia and Transphobia (IDAHOBIT) on 17 May, Kirby compared the struggles of the transgender community to some of his own as a gay man when homosexuality was still criminalised. IDAHOBIT marks the day in 1990 when the World Health Organization removed homosexuality from its classification of mental disorders. Kirby turned 86 in March and still works as a lawyer and advocate. He shared reflections on his six-decade legal career, witnessing and at times playing a starring role in achieving major progress in equality and social reform. He has been appointed Chairman of the Australian Law Reform Commission, judge to the Federal and High courts of Australia and recipient of the Australian Human rights award and Order of Australia medal. Kirby says he is very concerned about attacks on transgender people's rights, arguing they are on "the front line" of the fight for equality in Australia.
He says he anti-transgender rhetoric in Australia is concerning because people's lives being discussed and debated in public is indicative that such people are privately suffering. "My own experience in dealing with the LGBTIQ+ communities generally is that trans people have a very difficult life. "Most gay people nowadays can get by being open — gays and lesbians are now well-known and recognised in society, and that recognition and acceptance has led to quite a significant change in attitudes." He says attitudes have changed in schools, in particular in the public system, and to some extent in churches too.
"But the struggle isn't over and it's the trans people who are at the moment really on the front line. "And although it appeared that we were making progress in our world on the issue of transgender rights, suddenly, as a result of the advent of Donald Trump, this became a hot political issue in the United States and that has led to imitation in other countries including Australia, although to a lesser extent." Last month the UK Supreme Court ruled that the legal definition of a woman is based on someone's assigned sex at birth, leading to . Kirby referred to an incident last month where demonstrators in Melbourne clashed over transgender rights, with some using similar rhetoric about the need for 'single-sex' bathrooms that had been used by the anti-transgender campaign in the UK.
Organised by the Women's Voices Australia group, the demonstration involved around 50 people campaigning against expanding Victoria's hate speech laws to include LGBTIQ+ people, who were met by over 400 'Trans Liberation' counterprotesters, according to a news.com.au report. "Sometimes [anti-transgender sentiment] is dressed up as a concern about equality in sporting competitions," Kirby says. "But fundamentally, it is the same problem that faced gay people back in the period before 1984 in New South Wales — it is a distaste for anyone who is not the same as oneself." There is still a lot of work to be done, particularly on countering discrimination in religious schools and some work environments, Kirby says.
But he says his advice to younger Australians would always be that "things get much better." "Being LGBTIQ+ is just part of the variation of the human and other species. "And if you don't like it, you've just got to have a lie down, have an aspirin, and you get over it because it's not going to change — this is part and parcel of our species."
Kirby realised his same-sex attraction when he was still in primary school. But he didn't publicly acknowledge it until 1999, when he agreed to list his long-term partner Johan van Vloten on a magazine list of 'Who's who in Australia'.
He says in the lead-up to decriminalisation of homosexuality, he began to stop following the rules he believed were unjust. "I was like Nelson Mandela in this respect — I didn't comply. He didn't comply with the pass law and carry around a pass which had been imposed on the citizens in South Africa. "And I didn't comply after a while with the anti-gay laws."
Asked about the biggest legal discrimination issues Australia faces in 2025, Kirby says in some ways they are the same as they were in the 1970s, when Whitlam embarked on reforming discrimination legislation, following 23 years of conservative government. "The first step in a serious reform will be to change the residue of injustices and inequalities that still exist in our legal system — in terms of women's equality, equality for Indigenous people and LGBTIQ+ rights. And also to develop the concept of having a national bill of rights or a human rights statute."
Kirby initially expressed his opposition to Australia's postal vote on marriage equality in 2017, arguing it "devalued" the community to have the public vote on their rights and encouraged people to boycott the vote. When it was time to vote, he did vote 'yes' and in 2019 decided it would be "very romantic" to marry his partner Johan on their 50th anniversary as a couple. Reflecting on 56 years together, Kirby says he feels lucky to have such a long relationship in his life as well as "such an intelligent partner".
"Even though he is now 86 — which when I was young and when I first met him in 1969, I would've regarded as the age of Methuselah — he is still I think a good-looking man. Mind you, he's had a very blessed life having me as his partner, but he is vigorous, he plays tennis, he has a personal trainer, he looks after himself and all I do is work. "The thing I've learned is you have to have one partner who gives in — in any relationship there are battles and there are disagreements and sometimes very strong disagreements". Kirby says the giving in is done by him. "Generally [Johan]'s in the right, but sometimes he's not, but I still give in because I love him and I'm grateful to him and I thank him for what he does for us and I want this to continue." LGBTIQ+ Australians seeking support with mental health can contact QLife on 1800 184 527 or visit . also has a list of support services.