Submission to Rights & Responsibilities 2014 Consultation

The Human Rights Commissioner, Tim Wilson, is currently undertaking a public consultation called Rights & Responsibilities 2014. Unfortunately, similar to the ALRC Freedoms Inquiry, it is very much focused on ‘traditional’ rights at the expense of other rights like the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status. This post is my submission to this consultation process.

You can find out more about the inquiry, including downloading the Discussion Paper, at the following link: https://www.humanrights.gov.au/rights-responsibilities-2014 Written submissions, including an option to complete an online survey, are due by Friday 31 October 2014. Public consultations are also being held across the country, with a session in Sydney scheduled for Wednesday 19 November 2014 (details at the AHRC website).

Mr Tim Wilson

Human Rights Commissioner

Australian Human Rights Commission

c/- rights2014@humanrights.gov.au

Monday 27 October 2014

Dear Commissioner Wilson

SUBMISSION TO RIGHTS & RESPONSIBILITIES 2014 CONSULTATION

I welcome the opportunity to provide a submission to the Rights & Responsibilities 2014 public consultation, and in particular to provide feedback on the Discussion Paper, of the same name, published on the Australian Human Rights Commission (AHRC) website.

In this submission, I will provide feedback on two of the four rights, or related sets of rights, featured in Appendix A of the discussion paper (namely, the right to freedom of expression, and the right to freedom of thought, conscience and religious worship).

However, before doing so I would like to express my serious concern that the focus of the discussion paper is limited to some rights, which could be characterised as being more ‘traditional’ in nature (for example, the right to property), to the apparent exclusion of other rights which, I believe, are no less important in the contemporary world.

Specifically, I would argue that prioritising certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society.

From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[1]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community. For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights.

Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia” (page 1 of the Discussion Paper) but which then only focuses on a small number of freedoms, including the right to property, but which neglects others.

In this way, the Rights & Responsibilities 2014 Discussion Paper appears to reinforce the message, already made clear by the Attorney-General, Senator the Hon George Brandis’ ‘Freedom Inquiry’ reference to the Australian Law Reform Commission (see http://www.alrc.gov.au/inquiries/freedoms/terms-reference for the terms of reference), that some freedoms are somehow better or more worthy of protection than others. Both inquiries appear to suggest that there is a hierarchy of rights, with ‘traditional’ rights at the top, and other rights, such as the right to non-discrimination, placed below them.

This is particularly concerning when some of those traditional rights being promoted or ‘privileged’ in these consultations, including the right to property and the right to ‘common law protection of personal reputation’ (aka defamation), are rights which are inherently more valuable to those who already enjoy ‘privilege’ within society, while other rights vital to protect the interests of people who are not ‘privileged’ are largely ignored.

Above all, I am concerned that you, in your role as Human Rights Commissioner, should actively participate in the reinforcement of this supposed hierarchy of rights, with the right to non-discrimination placed somewhere toward the bottom – especially as you are also the Commissioner at the AHRC with responsibility for sexual orientation, gender identity and intersex status issues.

I would ask that you reconsider your approach to these issues in the Rights & Responsibilities 2014 consultation process, and, instead of promoting a narrow view of what constitutes fundamental human rights, ensure that other rights, including the right to non-discrimination – or to be free from discrimination – are also given appropriate consideration.

I will now turn my attention to two of the four rights, or related sets of rights, featured in Appendix A of the Discussion Paper.

Right to freedom of expression (page 5 of the Discussion Paper)

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Discussion Paper’s statement that freedom of speech is not absolute, in particular where it notes that:

“Under international law, freedom of expression may only be limited where it is prescribed by law and deemed necessary to protect the rights or reputations of others, national security, public order, or public health or morals. A mandatory limitation also applies to the right to freedom of expression in relation to ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.”[2]

In this context, I question why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status.

The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification. Therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission earlier this year in response to the Attorney-General, Senator the Hon George Brandis’, Exposure Draft Bill seeking to repeal section 18C of the Racial Discrimination Act 1975, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984 (a copy of this submission can be found at the following link: http://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/ ).

Thus, while I understand the focus of this section of the Discussion Paper is on ensuring that there exist only narrow restrictions on ‘freedom of expression’ (as summed up in the question “how individuals can be held accountable for the use of their freedom of expression outside of law” emphasis added), I submit there remains a proper, indeed necessary, role for legal restrictions on this freedom to protect against the “incitement to discrimination, hostility or violence”.

I further submit that these protections should cover lesbian, gay, bisexual, transgender and intersex Australians against such incitements. I sincerely hope that, in your capacity as both Human Rights Commissioner and AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree.

Right to freedom of thought, conscience and religious worship (page 6 of the Discussion Paper)

I also acknowledge the fundamental importance of the rights to freedom of thought, conscience and religious worship. I further agree with the Discussion Paper on page 6 where it states that “[t]he internal dimension of the right – the freedom to adopt or hold a belief – is absolute.”

However, just as importantly, I support the statement that “the external dimension – the freedom to manifest that belief in worship, observance, practice or teaching – may be limited by laws when deemed necessary to protect the public safety, order, health or morals, or the fundamental rights and freedoms of others” (emphasis added). This is a vital caveat that allows Governments to protect other individuals and groups against both potential and real harm.

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religious worship, and the harms caused by breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous, and essentially approve the prejudicial and discriminatory treatment of LGBT Australians by religious bodies in a large number of areas of public life[3].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984 (which provides that “[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibility of adherants of that religion”) and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate, with impunity, against both LGBT employees and potential employees, as well as LGBT individuals and families accessing these services; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[4]

It is difficult to see how these exemptions, which allow LGBT people to be discriminated against simply as they seek to obtain an education, or access healthcare (which are themselves fundamental international human rights), and to be treated unfairly in employment in a large number of jobs across a wide range of areas, is not a gross breach of their human rights.

It is even more difficult to envisage how these exemptions fit with the statements on page 2 of the Discussion Paper that “[r]ights and freedoms… are about being treated fairly, treating others fairly…” (emphasis added) and that “[l]imits on rights have been established to ensure individuals do not harm others when exercising their own rights.”

Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I assert, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[5], if supplemented by exemptions covering how religious ceremonies are conducted, would be both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. Therefore, these are the only religious exemptions which should be retained.

This, much narrower, approach to religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others.

In this respect, I question why the Discussion Paper does not live up to its title – examining both Rights AND Responsibilities – but instead focuses primarily on the expansion of some rights, including the right to freedom of religious worship, even at the possible expense of others, such as the right to non-discrimination. For example, the conclusion of the section on “Right to freedom of thought, conscience and religious worship” notes that:

Rights & Responsibilities will focus on:

  • the ways you exercise your right to freedom of religion
  • where restrictions on freedom of religious worship exist
  • whether you have felt restricted or prohibited from exercising your right to freedom of religion
  • what could be done to enable you to exercise your right to freedom of religion.”

This focus presupposes that the only changes with respect to this area of law should be expansions to the ‘freedom of religion’, rather than allowing for the possibility that people claiming to exercise this freedom are in fact unjustifiably and inappropriately infringing upon the rights of others.

The Discussion Paper does not seem to even contemplate the possibility that more protections may be needed to shield LGBT Australians from discrimination, perpetrated by religious organisations, but which at this stage is legitimated by exemptions to Commonwealth anti-discrimination law.

I submit that removing these wide-ranging, and overly-generous, religious exemptions is one of the most important, and effective, reforms the Government could make to improve the rights of any group of Australians. I sincerely hope that, as AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree that LGBT Australians should be free to live their lives without homophobia, biphobia, transphobia and intersexphobia. And to do so without exception.

Thank you in advance for your consideration of this submission.

Sincerely

Alastair Lawrie

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

[1] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000.

[2] International Covenant on Civil and Political Rights, Article 20(2).

[3] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity.

[4] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services.

[5] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice…”

Letter to Bill Shorten re LGBTI Under-Representation in Parliament

The Hon Bill Shorten MP

Leader of the Opposition

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Monday 13 October 2014

Dear Mr Shorten

LGBTI UNDER-REPRESENTATION IN PARLIAMENT

On this day exactly one year ago, you were elected Leader of the Australian Labor Party, after the historic first ballot in which ordinary party members were allowed to cast a vote.

During the public campaign which preceded this ballot, one of the issues which you raised was the lack of representation of some groups within society inside the ALP caucus, and the Commonwealth Parliament more broadly.

Specifically, during your campaign you announced: “[w]e should consider quotas for sections of our community that are under-represented in our parliaments, including Indigenous Australians and the LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) community.”

It is encouraging that a then candidate, and now leader, of a major Australian political party so openly acknowledges the failure of our nation’s Parliament to even come close to approximating the demography of its population.

It is shameful there have only ever been four recognised Indigenous members of the Commonwealth Parliament – and that the first Indigenous ALP MP, and first-ever female Indigenous MP, Senator Nova Peris, entered Parliament only last year, after more than 112 years of ALP caucuses.

It is almost as shameful that there have only ever been six openly identified members of the LGBTI community elected to Commonwealth Parliament, and none in the House of Representatives[1]. Of those six, only two have been from the Australian Labor Party – Senator the Hon Penny Wong and Senator Louise Pratt – and the latter was essentially ‘replaced’ in Parliament earlier this year, at the WA half-Senate election, by Senator Joe Bullock, a person who strongly opposes LGBTI equality.

It is clear from this historic under-representation that there have been countless talented and capable Aboriginal and Torres Strait Islander, and LGBTI, individuals who have not had the opportunity to serve in the nation’s Parliament – and that our Parliament has unarguably been poorer for their absence. It is also clear that this under-representation continues today.

One of the options for resolving this ongoing under-representation is, as you identified last year, the introduction of ‘quotas’ for Indigenous and LGBTI candidates (by which I assume you mean the implementation of new rules within the ALP setting minimum targets for Indigenous and LGBTI candidates in ‘winnable seats’).

The benefit of such an approach has been amply demonstrated by the success of targets for female candidates within the ALP over the past 20 years. When the 35% target (now 40%) was first adopted in 1994, the proportion of female MPs within the major parties was roughly the same: 14.5% within the ALP, 13.9% within the Liberal Party.

Two decades later, and the difference between the two major parties is stark: 42.4% of current ALP Commonwealth MPs are women, while only 21.6% of Liberal MPs are women (and, of course, there is only one woman inside the Abbott Liberal-National Cabinet, significantly lower than during the previous two terms of Labor Government).

While there have been other contributing factors, including the work of EMILY’s List, it is undeniable that the affirmative action rules first adopted in 1994 have played a major part in helping to ensure the ALP caucus is now more representative of the Australian population, and that talented and capable female candidates have a fairer chance at being elected to the nation’s parliament.

It is also no coincidence that, of the three ‘social groups’ mentioned in this letter – women, Indigenous people and LGBTI people – the only one where the ALP has adopted minimum targets is also the only one where the ALP has a significantly better track record than the Liberal Party.

All of which suggests that, despite some of the criticism which your original proposal received, ‘quotas’ – or some form of affirmative action rules – are at least worthy of further consideration as one possible policy tool to overcome Indigenous and LGBTI under-representation.

Other approaches to improve LGBTI representation specifically, include actively stamping out any institutionalised homophobia, biphobia, transphobia and intersexphobia that may exist within the Australian Labor Party, including in affiliated organisations that participate in and strongly influence the direction of the Party.

And, if you are serious, and indeed if the ALP is serious, about ensuring that the issue of ongoing LGBTI under-representation in Commonwealth Parliament is finally addressed, then I believe the ALP should also ‘reach out’ to the LGBTI community by ensuring that LGBTI equality is a core, and non-negotiable, plank in the national ALP policy platform.

That means recognising that LGBTI Australians are full and equal citizens in every single way, including in the recognition of our relationships, and not allowing ‘conscience votes’ where individual MPs are allowed to vote against this equality simply on the basis of personal prejudice(s).

Each of these three approaches – affirmative action rules, stamping out any internal homophobia, and adopting a platform supporting full equality, with no exceptions – would increase the engagement and involvement of LGBTI people inside the ALP and ultimately ensure more LGBTI members of parliament. Ideally, from my perspective, all three would be adopted.

My questions to you, Mr Shorten, are these:

12 months since you were elected Leader of the Australian Labor Party, and more than a year since you identified the under-representation of LGBTI people in parliament as an issue to be addressed, what approach(es) do you support?

With the pre-selection of some ALP candidates for the 2016 federal election already underway, what steps have you taken to ensure that these processes encourage more LGBTI people to nominate as potential candidates?

And, finally, what (if any) possible rules changes are you developing with respect to this issue, to be put forward for consideration at the next ALP National Conference in Melbourne in July 2015?

I look forward to receiving your answers to these questions, and your response to this important issue more broadly, in the near future.

Sincerely,

Alastair Lawrie

[1] For more on this, see http://alastairlawrie.net/2013/11/16/lgbti-voices-absent-from-the-chamber/

12 months after being elected, what is Bill Shorten doing on LGBTI under-representation in Parliament?

12 months after being elected, what is Bill Shorten doing on LGBTI under-representation in Parliament?

Submission to Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Recognition of Foreign Marriages Bill 2014

As I committed to in my previous post on the topic of the Recognition of Foreign Marriages Bill 2014 (see here: <http://alastairlawrie.net/2014/06/26/why-i-dont-support-the-recognition-of-foreign-marriages-bill-2014/ ), unless somebody was able to provide a satisfactory explanation as to why, as a strategy, the recognition of foreign marriages should be pursued separately to, and ahead of, equality for domestic marriages, I would lodge a submission to the Senate Inquiry into the Bill expressing my serious concerns about this proposed law.

In the absence of any such explanation, I lodged my submission at the end of July, making clear my personal opinion that the Recognition of Foreign Marriages Bill 2014 should be withdrawn, and replaced by genuine marriage equality legislation.

I understand that this position may be controversial with some people, and that my words may even be used against me by others (indeed my original post has been quoted, selectively, by the Catholic Archdiocese of Sydney in their own submission to the inquiry), but I absolutely believe that, as a movement, we should be fighting for real marriage equality, and that we should be pushing for it to be passed by the Parliament as quickly as possible – unfortunately, the Recognition of Foreign Marriages Bill 2014 is not such a law.

One final, more positive, point: it appears that, as a result of a range of submissions, and the evidence given to the Senate Inquiry by Tony Briffa, there is now a strong chance that the Bill will at least be amended to ensure that it is not discriminatory on the basis of gender identity and intersex status.

This is obviously a very welcome development, but it would nevertheless leave intact the Bill’s inherent discrimination on the basis of class and nationality. Which, at least from my perspective, remains sufficient justification to argue for the Recognition of Foreign Marriages Bill 2014 to be withdrawn.

The following is the text of my submission to the Senate Inquiry into this Bill, which has been published on the APH website, and is available at the following link: <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Recognition_of_Foreign_Marriages_Bill_2014/Submissions

For more than ten years, and especially since the lead-up to the passage of the ban on marriage equality by the Howard Liberal-National Government, supported by the Labor Opposition, in 2004, I have been a strong and consistent – and occasionally vocal – supporter of marriage equality.

I firmly believe that all couples deserve the right to marry, and have that marriage recognized under Commonwealth law, irrespective of their sexual orientation, gender identity or intersex status.

I do not accept that there is any valid reason for the Australian Government to continue to discriminate against lesbian, gay, bisexual, transgender and intersex (LGBTI) people, and to devalue their (our) relationships, by denying a fundamental right which is offered without question to cisgender heterosexual couples.

This is particularly true following the High Court decision in December 2013, which overturned the ACT’s same-sex marriage legislation but also established that there is no constitutional impediment to the Commonwealth Parliament passing a Bill which would finally affirm that our love is indeed truly equal.

I deliberately use the word finally because we have been waiting long enough. My fiancé and I have already been engaged for four and a half years – and it may be several more before we have the opportunity to have a legally recognised wedding, something that my sister and her husband, and my brother and his wife, simply took for granted.

I strongly urge the Commonwealth Parliament, including all Senators and Members of the House of Representatives, to pass a marriage equality Bill as a matter of priority, and thus bring to an end the sorry situation whereby LGBTI Australians are treated as second class citizens in their own country.

Unfortunately, the Recognition of Foreign Marriages Bill 2014 is not such a Bill. It will not end the second class treatment of all of our relationships, and I do not believe it should be brought before the Parliament for debate.

My problem with this proposed law is not necessarily about what is included (although there is an issue in its terminology which I will come to later). It almost goes without saying that I completely support the legal recognition of the marriages of same-sex couples that have been wed in other countries.

Instead, my problem concerns what is not included in the Bill – the recognition of domestic marriages – and the consequence of only recognising marriages conducted ‘outside’ Australia, and not those ‘inside’ at the same time.

If passed, such legislation would create a situation whereby there would be three main, distinct categories of same-sex couples who wish to be treated as married in Australia:

    • Couples who have the financial resources to take advantage of the opportunity to marry under the laws of another country;
    • Couples who have been or are able to marry under the laws of another country because of their current or former nationality (including where one partner has UK citizenship, and can therefore marry in a UK consulate in Australia, or where the couple has emigrated from a country with marriage equality); and
    • Couples who do not have the financial resources or nationality to be able to take advantage of marriage equality elsewhere. 
Under this Bill, only couples in the first two categories would be able to be considered legally married.

In effect, if the Recognition of Foreign Marriages Bill 2014 were to succeed, Australia would have a system which, far from implementing genuine ‘marriage equality’, would actually create new types of marriage inequality, only this time based on distinctions around class and nationality rather than sexual orientation. 
Put simply, I cannot advocate for the progression of a Bill which would provide the opportunity for a couple who can afford it to get married overseas and have that marriage legally recognised here, but which would tell an elderly couple barely surviving on the age pension that they cannot be married under Australian law solely because they do not have the money.

If we are genuinely interested in marriage equality, then both couples must have the same right to wed. To put it another way, I am only interested in advocating for the progression of a Bill which redresses the injustice perpetrated against both couples, not just the couple that can afford to marry.

The only argument which I can see for pursuing this legislation is that some people may view it as an incremental step towards full marriage equality. And I whole-heartedly agree that, in some cases, incremental reform may be necessary to achieve larger, longer-term change.

However, I believe that in this case the people proposing this route towards achieving full marriage equality have not understood the fact that incrementalism is only ever a strategy, and not a goal in and of itself.

In this instance, there is absolutely no need for an incrementalist approach. There is no difference in how the Recognition of Foreign Marriages Bill 2014 would be treated by Commonwealth Parliament and how a genuine Marriage Amendment Bill – one that provides for the recognition of both overseas and domestic marriages – would be received.

Both Bills would involve asking the same people, sitting in the same place, exercising the same powers, and almost inevitably using the same arguments, to vote yes (or no).

The only potential justification for proceeding with the Recognition of Foreign Marriages Bill and not a genuine Marriage Amendment Bill would be if there existed Senators and Members of the House of Representatives who would tell LGBTI-inclusive couples in Australia that they can only have their marriages recognised if they travel overseas, away from their family and friends, for the wedding.

I refuse to believe that, when it came time for the second reading debate on such a Bill in the Chamber, there is a single MP who would stand up and deliver that message. I do not accept that there would be MPs willing to tell LGBTI members of their community that yes, they can be married, but only on the proviso they go somewhere else for the ceremony. Instead, I sincerely believe the same people who would be willing to vote for the Recognition of Foreign Marriages Bill 2014 would also vote yes to full marriage equality.

In which case, there is no reason why the Commonwealth Parliament should not proceed directly to a genuine Marriage Amendment Bill, rather than consider something which falls far short of what could be considered fair, and is substantively less than what LGBTI Australians deserve.

I urge Senators who wish to pursue the Recognition of Foreign Marriages Bill 2014 to reconsider their approach. I submit that they should abandon this Bill in favour of legislation that would deliver the right to marry to all couples, not just those who can afford to take advantage of the opportunity to marry under the laws of another country first.

The next Bill to be debated in the Commonwealth Parliament should be, must be, legislation which provides for genuine marriage equality, irrespective of sexual orientation, gender identity or intersex status, and not one which would allow some same-sex couples to marry, but only those from certain classes or nationalities.

As I alluded to earlier, there is another problem with the Recognition of Foreign Marriages Bill 2014. And it is not a minor problem, either – although, as it concerns terminology, (hopefully) it is something which can be more readily resolved.

The Bill would leave intact the current definition of marriage in section 5 of the Marriage Act 1961 (“marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”). Instead, it replaces section 88EA with the following:

(1) Despite the definition of marriage in subsection 5(1), a union between:

(a) a man and another man; or

(b) a woman and another woman;

solemnised in a foreign country under local law as a marriage is recognised as a marriage in Australia.

(2) The parties to a union mentioned in subsection (1) have the same rights and obligations under this Act, or under any law of the Commonwealth, as the parties to a marriage between a man and a woman.

This is explicitly, and only, a same-sex marriage Bill. It is not genuinely inclusive of any marriages of people who may not be, or who may not identify as, a man or a woman. Some couples which include trans* or intersex individuals may not be able to utilise such laws or may not want to, because the language does not reflect who they are, and therefore denies the nature of their relationships.

The Recognition of Foreign Marriages Bill 2014 does not challenge the unnecessary inclusion of ‘man’ and ‘woman’ in section 5 of the Marriage Act, something which we should be moving away from – instead, it further entrenches these concepts, by replicating this language in additional subsections.

This is an issue which, I hope, is more about drafting than any deliberate intention to exclude people on the basis of gender identity or intersex status. As such, if, after this Senate Inquiry is concluded, the Recognition of Foreign Marriages Bill 2014 does proceed to Parliamentary debate, it should be amended to ensure all couples are included, not just ‘same-sex couples’.

Nevertheless, even if the Bill were amended to ensure that it did not discriminate against some trans* and intersex inclusive couples, my fundamental problem with it would remain – this legislation would not achieve genuine marriage equality, and therefore I believe it should be replaced by something that would.

The primary positive outcome to arise from this legislation, and the Senate Inquiry which it has precipitated, is that it has placed a spotlight on the injustice perpetrated on same-sex couples that have been married overseas (either Australian couples who have travelled elsewhere, or other couples who have emigrated here) and yet are told by the Australian Government that they are not considered legally married here.

Undoubtedly, this is a horrible, and heart-breaking, situation for any couple to be placed in. And it is yet another argument for the recognition of genuine marriage equality within Australia, and additional motivation for such a law to be passed as quickly as possible.

But it is not sufficient justification to proceed with legislation that addresses only this injustice. The discrimination against these couples, and the discrimination against other Australian couples who are waiting for the opportunity to be married here, is, in practice, the same discrimination. After all, we are all told that our relationships are not worthy of the same recognition as those of other Australians, simply because we are LGBTI.

These injustices can and should be remedied through the same Bill, rather than prioritising the needs of some couples over others without any clear or rational explanation why that should be the case.

One final point. I have tried to be clear in this submission that I do not support progress of the Recognition of Foreign Marriages Bill 2014 to second reading debate, and ultimately for vote on the floor of Parliament. Instead, I have consistently argued that this Bill should be replaced with genuine marriage equality legislation before it reaches that stage.

However, if the Recognition of Foreign Marriages Bill 2014 does proceed to a vote, there is no reason for Senators and Members of the House of Representatives to vote against it, and thereby vote against the potential expansion of marriage to include more couples than are currently allowed.

Nevertheless, it is still my preferred outcome that the next Parliamentary vote on marriage be on a genuine, and genuinely inclusive, marriage equality Bill – and therefore not on the Recognition of Foreign Marriages Bill 2014.

In conclusion, while the intentions of those who have drafted this legislation are most likely sound, the outcome that its passage would deliver is not. It is time to go back to the drawing board, and return with a Bill that delivers marriage equality, not just for some couples, but for all.

Alastair Lawrie

Thursday 31 July 2014

15 LGBTI Priorities for ALP National Conference 2015

There are now less than 12 months left until the next Australian Labor Party National Conference. To be held in Melbourne next July 24 to 26, National Conference is still the supreme decision-making body of the (traditionally) centre-left major party of Australian politics. National Conference is therefore the main opportunity to secure ‘progressive’ change in ALP policies during this term of Parliament, including on those issues affecting the LGBTI community.

And the first National Conference held after a loss of Government, as this one will be, offers more chance than most to help ‘reset’ the direction of the Australian Labor Party, to reject some of the worst policies of the Rudd-Gillard-Rudd Government (including the processing and resettlement of LGBTI refugees in countries which criminalise homosexuality) and to propose new, better policies which promote the fundamental equality of LGBTI Australians.

Which means that now is the time for LGBTI activists and advocates to be considering what our priorities should be for next year’s National Conference, and to start the process of lobbying (whether from inside or outside the party) to help achieve them.

The following is my list of priorities for LGBTI reform to the Labor Party platform. It is not comprehensive – I’m sure other people will have slightly different priorities, and I welcome feedback, particularly on issues which I have (either consciously or unconsciously) excluded. But I thought I would share this list to ‘kick off’ the debate, and help ensure we start planning our actions towards ALP National Conference 2015.

1. Remove religious exemptions from the Sex Discrimination Act 1984

One of the most important reforms of the previous Labor Government was the introduction of LGBTI anti-discrimination protections under Commonwealth law for the first time. The passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, albeit some 38 years after the Racial Discrimination Act and 29 years since the passage of the original Sex Discrimination Act, was indeed a historic achievement.

However, it was also a fundamentally flawed one, because it included wide-ranging exemptions allowing religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.

These exemptions are a blight on the Sex Discrimination Act and will undermine lesbian, gay, bisexual and transgender equality for as long as they exist. It is essential that ALP National Conference adopts a policy of removing religious exemptions from Commonwealth law, outside of the appointment of ministers of religion, and the conduct of religious ceremonies (ie those exemptions genuinely necessary for the exercise of religious freedom, not those which some religious organisations wish to use simply to discriminate against LGBT people across multiple areas of public life).

And while many may see this goal as unachievable, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 itself showed that it is indeed possible. By rejecting religious exemptions with respect to intersex status, and simultaneously ensuring that religious exemptions do not apply to LGBT people accessing aged care services, the last Parliament demonstrated that religious exemptions are not inviolable. It’s time to persuade the majority of delegates to next year’s National Conference to agree.

For more on this subject, see The Last Major Battle for Gay & Lesbian Equality Won’t be About Marriage <http://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/

2. Introduce Commonwealth LGBTI anti-vilification protections

One of the major social policy debates in the 1st half of 2014 concerned Attorney-General George Brandis’ exposure draft Bill seeking to repeal section 18C of the Racial Discrimination Act, a move that would have essentially gutted racial anti-vilification protections under Commonwealth law.

Fortunately, unlike many other social and economic ‘reforms’ put forward by the Abbott regime in its first 12 months in office, this move was soundly rejected, with a significant public backlash, as well as a strong pushback by the Australian Labor Party.

Well, now that racial anti-vilification protections have been saved, it’s time for the ALP to support the introduction of Commonwealth anti-vilification protections for LGBTI Australians.

No-one can seriously argue that homophobia, biphobia, transphobia and intersexphobia aren’t real, and substantial, problems in modern public life. We, as LGBTI Australians, deserve the same protections from vilification as other groups receive from different kinds of abuse. Nothing more and nothing less.

For more on this subject, see Don’t Limit Racial Vilification Protections, Introduce Vilification Protections for LGBTI Australians Instead
<http://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/

3. Implement the recommendations of the Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People in Australia

Another key development during the last term of Parliament was the Senate’s inquiry into the involuntary or coerced sterilisation of intersex people (to see the full report, click here: <http://www.aph.gov.au/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx and to see my submission to that inquiry, click here: <http://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/ ).

These practices, which shamefully continue today, are some of the most serious human rights violations, not just of LGBTI Australians, but of any person in contemporary Australia.

While the recommendations of the Senate inquiry are by no means comprehensive, their implementation would be a good start towards ensuring that intersex children are no longer subjected to unnecessary and unjustified ‘medical procedures’, and certainly not before they are in a position to either grant, or withhold, consent.

A related reform would be to support the removal of the exemption from policy frameworks on Female Genital Mutilation which permit such surgical interventions on intersex girls for rationales that include cultural issues such as marriage opportunities. A principle of non-discrimination should apply in all circumstances. For more information on this see OII Australia’s third submission to the Senate Inquiry, here: <http://oii.org.au/22613/third-submission-senate-inquiry-sterilisation/

4. Remove all out-of-pocket costs for trans* surgeries

The ability of people to access whatever medical support they require to affirm their gender identity isn’t just fundamental to their mental and physical health, it is a fundamental human right. As such, access to trans* surgeries and related medical procedures should not be restricted by the capacity to pay, but instead should be fully publicly subsidised through Medicare.

The Shorten Labor Opposition has been strong in standing up against the Abbott Government’s moves towards a US-style ‘user pays’ health system in Australia. They should be equally firm in asserting the right to full public funding of trans*-related medical expenses, including ensuring no out-of-pocket expenses for trans* surgeries.

5. Training for health professionals on trans*, gender diverse & intersex issues

The last two priorities – intersex sterilisation and trans* medical expenses – demonstrate the ongoing influence of health professionals in the lives of trans*, gender diverse and intersex people. That influence has the potential to be positive, but unfortunately in too many situations can and does directly lead to harm, often of a serious and/or permanent nature.

One of the key ways to overcome these negative impacts is to increase the basic knowledge of health professionals about trans*, gender diverse and intersex issues through introductory, and ongoing, training (which could also be used to increase knowledge about the health needs of lesbian, gay and bisexual people at the same time – although arguably, and leaving people like Dr David Van Gend and Philip Pocock aside, sexual orientation is treated marginally better than gender identity and intersex status by health professionals).

Hopefully by addressing the sometimes woeful level of (mis)understanding of trans*, gender diverse and intersex issues by health professionals we can go some way to changing some of the health indicators where trans*, gender diverse and intersex (and also lesbian, gay and bisexual) individuals ‘underperform’ compared to other Australians.

6. Introduce a genuinely-inclusive national Health & Physical Education curriculum

The draft national Health & Physical Education curriculum was developed by the Australian Curriculum, Assessment & Reporting Authority (ACARA) during 2012 and 2013, primarily while Peter Garrett was Education Minister – although briefly under the responsibility of then Minister Bill Shorten, too.

Unfortunately, even before the incoming Education Minister Christopher Pyne got his hands on it, the draft HPE curriculum was unambiguously a dud. It failed to be inclusive of LGBTI students and content – it doesn’t use the words lesbian, gay or bisexual once – and also failed to ensure that all schools would provide comprehensive sexual health education to students (scandalously, it doesn’t even refer to HIV or other blood borne viruses at all in the entire document).

And after Minister Pyne delegated the review of the overall national curriculum, including HPE, to noted homophobe Kevin Donnelly (alongside Ken Wiltshire), the version which will ultimately be adopted sometime later this term is likely to be even worse, especially in terms of its LGBTI-inclusiveness (or lack thereof).

This outcome will be a huge, and sadly bipartisan, missed opportunity, to improve the lives of thousands of lesbian, gay, bisexual, transgender and intersex young people around the country.

The Labor Party should accept its share of responsibility for this – and take action at the 2015 National Conference to remedy it, by including a commitment in the party’s platform to introduce a genuinely LGBTI-inclusive national Health & Physical Education curriculum.

To see my letter to Minister Pyne calling for Kevin Donnelly to be sacked from the Students First Review, click here: <http://alastairlawrie.net/2014/01/11/letter-to-minister-pyne-re-health-physical-education-curriculum-and-appointment-of-mr-kevin-donnelly/ and a copy of my submission to the review of the national curriculum can be found here: <http://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/

Will Bill Shorten support full LGBTI equality at ALP National Conference 2015?

Will Bill Shorten support full LGBTI equality at ALP National Conference 2015?

7. Provide long-term commitment to support Safe Schools

On the other hand, one of the best things which the Labor Government did with respect to LGBTI students and young people in its last term in office was to provide a 3-year, $8 million grant to the Foundation for Young Australians to support the national roll-out of the Victorian Safe Schools Coalition program.
Perhaps surprisingly, this initiative has (so far) not been cut by the Abbott Government, and the NSW launch of Safe Schools was held at the end of July 2014, with other states to follow.

With the need for multiple programs to address the ongoing problems of homophobia, biphobia, transphobia and intersexphobia in our schools, which we know takes a terrible, and often tragic, toll in terms of poorer mental health outcomes, I would like to see a clear commitment in the ALP platform to support the Safe Schools program on an ongoing basis into the future.

8. Provide ongoing funding for LGBTI service delivery organisations

The last Labor Government also provided a range of other important grants supporting LGBTI service delivery, including funding for the National LGBTI Health Alliance with respect to developing the aged care and ageing strategy, and $3.3 million over 2 years to the QLife counselling service, commencing July 2013.

Obviously, these issues – LGBTI aged care and ageing requirements, and the need for dedicated LGBTI counselling services – are not going away anytime soon. As such, the national platform should explicitly support the provision of ongoing funding to LGBTI service delivery organisations, including the National LGBTI Health Alliance and also other peak trans*, intersex, lesbian, gay and bisexual service delivery organisations, to ensure these types of programs aren’t simply ad hoc, disappearing after two or three years, but become a permanent part of the health and community services sector.

9. Appoint a Spokesperson for Equality

The first Commonwealth (Minister or) Assistant Minister for Women was appointed by Prime Minister Malcolm Fraser in 1976, and it has been a permanent portfolio at federal level (in some shape or form) since it was reintroduced by Prime Minister Hawke in 1983.

However, there has never been a corresponding portfolio for lesbian, gay, bisexual, transgender and intersex people and issues – and I would argue it is long overdue. The Victorian Opposition Leader, Daniel Andrews, showed the way in May 2013 by appointing Martin Foley as the Victorian Shadow Parliamentary Secretary for Equality, the first position of its kind in the country.

It’s time that the federal Labor Party did the same – and, given Bill Shorten did not create an equality portfolio when he was elected leader late last year, there is no reason why the 2015 National Conference shouldn’t create one for him.

Of course, putting LGBTI policies on a sustainable footing takes more than simply appointing one spokesperson within caucus. If elected, the ALP should also introduce LGBTI ministerial advisory bodies, either reporting directly to the Equality Minister/Assistant Minister, or separate bodies advising key portfolios which affect the LGBTI community (including Health, Education and Attorney-General’s). This is essential to help ensure the voice of the LGBTI is heard, loud and clear, by the government.

10. Support anti-homophobia, -biphobia, -transphobia and -intersexphobia campaigns and initiatives

Law reforms aimed at combatting the suite of ‘phobias’, such as the removal of religious exceptions from the Sex Discrimination Act, and introducing LGBTI anti-vilification protections, are absolutely essential, but are not in and of themselves enough to address the problems of anti-LGBTI discrimination in society.

That requires a more co-ordinated and sustained effort, including support for public education campaigns, like the Victorian Government’s support for the No To Homophobia initiative. There is no reason why a similar, broad-based national campaign should not be funded.

It also means supporting the efforts of organisations like the Australian Human Rights Commission in addressing discrimination outside specific complaints (such as their work with sporting groups on lesbian, gay and bisexual discrimination and, hopefully sometime in the near future, on anti-trans* and -intersex prejudice on the playing field, too).

Speaking of the AHRC, it is simply unacceptable in 2014 for there not to be a dedicated, full-time LGBTI commissioner. The challenges presented by LGBTI discrimination are complex and unique, and should not be subsumed within another policy area – and certainly not be seen as a part-time job of the so-called ‘Freedom Commissioner’, who only last year was arguing the LGBTI people should not be protected from discrimination under the law, unless that discrimination was by Government. ALP National Conference 2015 should support a real, full-time LGBTI commissioner at the Human Rights Commission.

11. Make support for LGBTI human rights an explicit goal of Australia’s foreign policy

One of the more pleasing political developments in recent years has been the growth in bipartisan support for Australian engagement to support LGBTI human rights internationally.

Of course, with roughly 80 countries criminalising homosexuality – and more than half of those countries members of the Commonwealth – there is plenty of scope for Australia to do more, and specifically to support any and all moves towards decriminalisation, as well as broader legal and cultural acceptance of diversity in sexual orientation, gender identity and intersex status.

Given the scale of this challenge, I believe the ALP should adopt support for LGBTI human rights as an explicit priority of international engagement and foreign policy in the 2015 National Platform.

12. Introduce a binding vote for ALP MPs on marriage equality

This is the issue which will dominate discussion, at least from an LGBTI perspective (and possibly in terms of media coverage as well), ahead of next year’s national conference. I have listed it at number 12, not because I think it is any more or less important than the other issues included, but to highlight the fact that there are actually other important topics that require our attention prior to next July’s gathering.

Having said that, readers of my blog would be aware that this is something that I feel passionately about, having already written a lengthy post about why #ItsTimeToBind for Australian Labor on marriage equality (see: <http://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/ ).

In short, there is absolutely no justification whatsoever why a collectivist party, which binds on nearly all policy issues, should make an exception to allow some of its MPs to vote against the fundamental equality of all couples. That is simply legitimising prejudice on the basis of sexual orientation, gender identity and intersex status, it is wrong, and it must end.

13. Abolish the National School Chaplaincy Program

This issue, and the next, are not explicitly (or at least not exclusively) LGBTI policy issues. But they are issues which do have an impact, and a potentially disproportionate impact at that, on the LGBTI community.

In the case of the National School Chaplaincy Program, not only is it a gross waste of money (especially in a supposedly ‘tight’ fiscal environment), as well as a completely unjustified breach of the separation of church and state, it is also a program which potentially exposes thousands of young LGBTI students to the prejudices of religious fundamentalists who are keen to tell them that they are wrong for simply being who they are.

There have already been multiple reports of such abuse (including those outlined in one of Senator Louise Pratt’s final speeches in the Senate – see here for a transcript <http://thatsmyphilosophy.wordpress.com/2014/06/18/senator-louise-pratt-on-school-chaplaincy/ ) and it would be unsurprising, to say the least, if they were simply the tip of the iceberg, given the hate-driven ideology of some groups involved in religious programs and activities in schools around the country.

Overall, the main reasons to abolish the National School Chaplaincy Program aren’t necessarily LGBTI-related (see my post Dear Joe Hockey, $245million for Schools Chaplains? You Cannot Be Serious <http://alastairlawrie.net/2014/05/15/dear-joe-hockey-245-million-for-school-chaplains-you-cannot-be-serious/ ). But the LGBTI community still has an undeniable interest in supporting a platform change so that the ALP commits to abolishing the scheme, in its entirety, when it returns to office.

14. End the offshore processing & resettlement of refugees

As with chaplaincy, this is not an exclusively LGBTI policy issue – after all, the fact that Australia ‘exports’ asylum-seekers who arrive by boat, imprisoning them for several years in either Nauru or Papua New Guinea (tragically it seems at the risk of being killed, by violence or by criminal negligence), with the aim of ‘resettlement’ in those same countries despite their comparative lack of resources, is wrong no matter what the sexual orientation, gender identity or intersex status of the person(s) involved.

But the fact that LGBTI refugees are being placed at increased risk, given both Nauru and PNG retain colonial (including Australian colonial) era laws criminalising homosexuality, adds both an extra layer of oppression, as well as additional motivation for LGBTI advocates and activists to call for the end of offshore processing and resettlement – something that, depressingly, was reintroduced by the last Labor Government. It’s up to delegates at the 2015 National Conference to correct this appalling mistake.

For more on this issue, see my letter to Minister Scott Morrison, calling for an end to this situation (including his Department’s exceptionally disappointing response: <http://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/ ) as well as my piece 13 Highs & Lows of 2013: No 1. Australia sends LGBTI refugees to countries which criminalise homosexuality (<http://alastairlawrie.net/2013/12/27/no-1-australia-sends-lgbti-refugees-to-countries-which-criminalise-homosexuality/ ).

15. Support the pre-selection of openly-LGBTI candidates for winnable seats

This issue potentially can’t wait until National Conference 2015, with some jurisdictions having already commenced the pre-selection process for the next federal election, due in September 2016. However, if nothing is done on this between now and next July then I believe National Conference should step in.

As I have written previously, there has still never been an openly LGBTI MP in the Australian House of Representatives (see: <
http://alastairlawrie.net/2013/11/16/lgbti-voices-absent-from-the-chamber/ ), leaving us well behind our counterparts in the UK, Canada, New Zealand and even the US.

From an ALP point of view, while former Cabinet Minister Senator Penny Wong continues to blaze a trail (and is now Leader of the Opposition in the Senate), LGBTI-community representation has actually halved this year, with the homophobe Joe Bullock replacing Louise Pratt at April’s WA election re-run.

The issue of LGBTI under-representation in Parliament was actually identified as a priority to be addressed by Bill Shorten while he was campaigning for the Labor leadership in September and October 2013. While his possible solution was controversial (he suggested that quotas be considered, in a similar way to affirmative action rules for women), he was right to highlight the lack of diversity in caucus as a long-term problem to be overcome (noting of course that it also took until 2013 for Labor to elect an Aboriginal MP in either House).

Well, history shows he won that ballot, and it is now almost 12 months later, with pre-selections commencing – so it’s time for Opposition Leader Shorten to follow through on his interest in this issue and put forward his ideas on how the ALP can overcome any structural barriers that it has that has meant no openly LGBTI candidate has ever been pre-selected for a winnable seat.

If he does not, if the pre-selection process continues as normal with LGBTI candidates continuing to be excluded, and Mr Shorten does not put forward any concrete proposals for increasing LGBTI representation inside the ALP, then I think we should be actively considering quotas, or other potential ideas to increase LGBTI representation in the Commonwealth Parliament, as amendments to the Party’s Rules at next year’s conference.

So, there you have it, my list of 15 LGBTI policy priorities for next year’s ALP National Conference. As you can see, it’s not comprehensive by any stretch of the imagination. In particular, I have not included nationally-consistent, best practice birth certificate reforms (affecting both trans* and intersex individuals, in different ways), in part because, being honest, I do not fully understand the issues involved, and in part because some activists may prefer to pursue this at state level (which currently has constitutional power), rather than federally. But I very much welcome feedback on what possible platform amendments in that area would look like (hint: feel free to leave a comment below).

Of course, this list will nevertheless still be criticised by some within the ALP – either because they see it as somehow too radical, or because they would prefer to adopt a ‘small target’ strategy ahead of the next election. And of course it would attract negative comments from those opposed to any form of LGBTI equality.

But I make no apologies for the fact that we should be pursuing what these critics might attack as a ‘gay agenda’ – because there is nothing wrong with pursuing an agenda of inclusivity and equality. None of the reforms above are unnecessary, or unjustified. Each would improve the lives of LGBTI people.

And all of them should be adopted by a Party that, even if only occasionally, still likes to use the word progressive to describe itself. It’s up to us to make sure that as many of these policies are adopted as possible at next year’s National Conference. It’s time to make sure the ALP stands up for substantive LGBTI equality.

10 Things I Hate About Marriage Inequality. #1: Because I can’t marry the man I love

The number one reason why I hate marriage inequality in Australia is because it means that I cannot marry the man who I love.

Me (on the left) and Steven (aka the handsome guy with the sunnies).

Me (on the left) and Steven (aka the handsome guy with the sunnies).

I was half-tempted to leave it at that because, really, what more do I need to say?

There can be few things more beautiful than the desire to celebrate the love that you have for your partner, in front of your family and friends. I want to experience that with Steve, the person I care about most in the world, and who brings me more happiness than I ever thought possible.

At the same time, there can be few things uglier than a Government intervening to tell you “No”, you cannot experience that, simply because of your sexual orientation (or, for others, gender identity or intersex status). Especially when there is absolutely no legitimate reason why the Marriage Act 1961 should discriminate against LGBTI-inclusive couples, something that is incredibly frustrating, to Steve and me, and to the thousands of other Australian couples in the same situation.

Obviously, the issue of marriage equality is very personal for all of the people that it directly affects. And, in that, I am no different. It does affect me personally and, as the people closest in my life can attest (and as this countdown has made exceptionally clear) I take its denial very personally.

How could I not? When you celebrate wedding after wedding, of your sister, and your brother, and your cousins, and your partner’s extended family, and your friends and his friends as well, and you just want to do the same, yet you cannot because 139 Senators and Members of the House of Representatives back in September 2012 decided that you are ‘unworthy’ simply because you’re gay, well, how could that not feel like a knife right through your heart?

In fact, there are very few contemporary public policy issues for which the old maxim – that the personal is political – could be more accurate. The recognition of our relationships is obviously immensely personal, and it is impossible to deny that whether they are recognised or not, or recognised but with a lesser value than cisgender heterosexual relationships, is inherently political.

That particular saying works the other way, too. The position that each of our parliamentarians adopts on this political issue reflects something profound about who they are as a person as well.

And I’m not just talking about the Cory Bernardis or Helen Polleys of this world, either – Senators who thought it appropriate to link the prospect of marriage equality with bestiality and the Stolen Generation, respectively – although their parliamentary speeches certainly revealed their utter contempt for LGBTI Australians.

I am talking about the MPs who might not say anything ‘overtly’ homophobic during Parliamentary debates about marriage, but who cast their vote against equality nonetheless. In doing so, they indicate that they choose discrimination and inequality over love and inclusion. They stand up against the idea that all Australians deserve equal treatment under the law, instead supporting the notion that some people are ‘more equal’ than others.

Those who vote against marriage equality devalue our relationships, telling us that they are less worthy of recognition than those of other people. And they devalue us as individuals too, subtly (or in some cases, not so subtly) sending the signal that we are less than full citizens of our own country. Even if they do not say the words, their position reveals, loud and clear, that they believe LGBTI people are – and should be – second class.

At its most personal, an MP who votes against marriage equality is saying that they themselves are more deserving of certain rights, that their own relationships are more worthy of recognition, that they as individuals are simply better than LGBTI Australians.

To them I say, “How dare you”. How dare you suggest that, because I am gay and you are heterosexual, you are more deserving of certain rights than I am. And how dare you deny us the rights that you currently enjoy (whether you choose to exercise them or not) simply because we are in a same-sex relationship and you are not.

The love that Steve and I share is not better or worse, more valuable or less valuable, or more deserving or less deserving, than the love between cisgender heterosexual couples. It’s all just love. The law should not make a distinction between the love that Steve and I have for each other, and that between my sister and her husband, or my brother and his wife.

Sadly, because of the amendments made under the Howard Government in August 2004, and the failure of our MPs since then to remedy this discrimination, the law does make such a distinction.

Today, Wednesday 13 August 2014, those amendments, that legal distinction, this ongoing and unjustified discrimination against LGBTI Australians, ‘celebrates’ its own ten year anniversary.

The traditional gift for a ten-year wedding anniversary is tin. I’m sure you’ll forgive me for not wanting to buy anything special to mark the occasion.

What I will do, what I feel compelled to do on this day, is say to all of those MPs who voted against equality in 2004, and continue to do so now, you truly are the tin men and tin women of Australian politics. You have forgotten that you have hearts, or, at the very least, you have forgotten how to use them. Indeed, it seems you have forgotten what hearts are even there for.

Well, now is the time to rediscover their purpose. And now is also the time to rediscover your purpose as our elected representatives – that it is your responsibility to act for the betterment of Australia, and the welfare of its people, all of its people, not just the cisgender heterosexual ones.

On this, the 10th anniversary of the ban, it’s time to support marriage equality, and in so doing to support the full and equal citizenship of all Australians, irrespective of sexual orientation, gender identity and intersex status. If you do, if you finally agree to pass marriage equality, then you should rest assured that nothing bad will happen. The sky will not fall in. There will be no negative consequences whatsoever.

The only outcome will be overwhelmingly positive. Thousands, indeed tens of thousands, of couples will finally be able to express their love and commitment in front of their family and friends. Couples like Steve and me. We are ready and waiting to say those two small words to each other, “I do”. We just need you to say two other words first, “You can.”

10 Things I Hate About Marriage Inequality. #2: Because we’ve been waiting so damn long

The ten year anniversary of Australia’s ban on marriage equality is now only a few days away. Unfortunately, the long-awaited repeal of the ban is still some time off.

The best-case scenario: Commonwealth Parliament passes marriage equality in 2015. A more realistic outcome is that equal marriage is finally introduced sometime during the next term of Parliament (2016-2019). And there is still a small but real chance that marriage equality is two (or more) terms away, meaning it could be delayed here until the 2020s.

No matter when it (eventually) happens, there will be thousands upon thousands of Australian LGBTI-inclusive couples who have been waiting, and waiting, and then waiting some more, simply to exercise the same rights that our cisgender heterosexual counterparts enjoy without question. And, to me at least, the waiting itself has become both seemingly interminable, and insufferable.

Australian Marriage Equality has effectively tapped into that sentiment with one of its main campaigns of 2014, with stories and images of couples with the ‘We’re Waiting’ message. This campaign is both an accurate reflection of the feelings of many within the LGBTI community, and a reminder to decision-makers that this policy choice is not abstract, but affects ‘real people’ in all-too-real ways.

And it is the human element of the ongoing ban, the costs of being forced to wait, that I want to concentrate on here. Because the delay of being able to get married, for years or even decades, carries with it very real consequences for the couples involved.

The first consequence is that it directly affects the ability of couples to celebrate their wedding with all of the family members and friends who they would like to be there for their special day. For those couples that do not choose to travel overseas (which itself obviously limits who is able to attend), by forcing LGBTI-inclusive couples to wait to marry within Australia, the Parliament is effectively interfering with the ‘guest list’ of many couples.

From Steve and my perspective, as I have written before, we are both very conscious of the fact that, the longer the ban on marriage equality goes on, the less and less likely it is we will be able to have our remaining grandmothers there for the occasion (either for reasons of ill-health, or worse). They certainly could have been there had we been married two or three years ago (ie after an engagement of 12 or 24 months), but even today it is becoming doubtful.

I often imagine how ‘traditional marriage’ or ‘family values’ or even ‘small government’ campaigners would react if the Commonwealth Parliament intervened to tell them who they could, or could not, invite to their wedding. I suspect they would probably have a pretty spectacular hissy fit. And yet that is exactly what they are seeking to impose on us – stealing from us our ability to celebrate our weddings with who we choose.

The second consequence is another ‘theft’, but the effects of it won’t become apparent for most of us for many years, long after the ban on marriage equality is lifted. And that is they are stealing from us future ‘significant’ wedding anniversaries. Because, the longer our entry to marriage is delayed, the less likely it is that current LGBTI-inclusive couples will reach our 60th, 50th or even 40th or 30th wedding anniversaries.

Now, to some that might seem like a petty argument. After all, we will still have ‘anniversaries’ for the significant events of our relationships (for example, today is the 6th anniversary of when Steve and I first met, and we will certainly be celebrating the occasion).

But it is impossible to deny that significant cultural value is still placed on long-lasting marriages, perhaps even an increasing value when so many marriages do not last that long (for whatever reason). How many of us experience an ‘awww, that’s sweet’ moment when we see the 60th or 50th wedding anniversaries of older couples, either family members or friends, or even reported on the news?

Well, far fewer of our relationships will reach those moments in the decades to come because of the actions of Commonwealth parliamentarians in 2004, 2012 and today. Once again, imagine the outcry from ‘traditional marriage’ (aka anti-LGBTI equality) campaigners if the Government were to intervene to effectively steal those anniversaries from them. They need to be reminded that it is just as unacceptable when it is done to LGBTI Australians.

However, it is the third consequence, yet another theft, which is the most offensive, and most objectionable. And that is that there are countless couples who wanted to marry but where one or both have died since the original ban on equality was introduced in 2004, and many more who will continue to die before being able to wed while this homophobic discrimination remains in place.

These are couples who have had the right to marry stolen from them, now and for all time, merely because of their sexual orientation, gender identity or intersex status. For most, they grew up at a time when homosexuality was criminalised, and when trans* and intersex people were ‘invisibilised’ and subject to the worst forms of abuse (even worse than today), but who have then suffered one final indignity at the hands of the Australian Government – the denial of the equal recognition of their relationships during their lifetimes.

The worst thing, the most frustrating part, about this entire situation is that everyone knows marriage equality is inevitable. I know it. You know it. Julia Gillard knew it. Tony Abbott must know. In fact, all MPs, certainly since 2011 or 2012, if not before, must have recognised that marriage equality will eventually be passed in Australia, and that the only remaining question is whether that happens now, or in five or even ten years time.

And, while there is absolutely nothing that is ‘gained’ from this delay, as I have shown above there is plenty that is lost, not least of which is the undeniable loss of those couples who were never able, and will never be able, to wed.

Which makes the ongoing failure of Commonwealth Parliamentarians to pass marriage equality one of the most petty and vindictive acts – or omissions – in recent political history.

It is, frankly, unforgiveable that our MPs are not only stubbornly opposing what is right, and standing firm against the overwhelming tide of history and progress, they are rejecting the rights of Australian couples, including members of their own electorates, when they know in their hearts that all they are doing is delaying the inevitable, and making those couples pay the cost in the meantime.

This outcome, the price that is being paid by couples around the country because of this interminable ‘wait’, is definitely one of the things I hate most about marriage inequality.

10 Things I Hate About Marriage Inequality. #3: Because it makes attending weddings a bittersweet experience

Weddings are supposed to be joyous occasions, a celebration of two people coming together to express their love and commitment to each other in front of their family members and friends. If ever an event was meant to provoke happiness – pure, unambiguous happiness – surely a wedding would be it.

But, when I go to weddings I cannot help but find them to be bittersweet. The joy of the ceremony, and my happiness for the couple involved, is tempered by sadness at the knowledge that I, and the man who I love, currently cannot participate in the exact same ritual, solely because of our sexual orientation.

Obviously, the main source of this frustration is the legislative ban on marriage equality, introduced by the Howard Liberal-National Government in 2004 (an event which itself celebrates its ‘tin’ anniversary next week), and perpetuated by his successors including Julia Gillard and Tony Abbott.

However, this hurt and anger is compounded by the section of the wedding ceremony where the celebrant is compelled to read out the following:

“I am duly authorised by law to solemnise marriages according to law. Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” (emphasis added).

Talk about rubbing salt into the wound. Section 46(1) of the Marriage Act 1961 (Cth) makes it clear that these words must be read out by the celebrant (although, bizarrely enough, only by civil celebrants – ministers of religion for a recognised denomination are exempted from this requirement).

The Guidelines on the Marriage Act 1961 for Marriage Celebrants also confirm that, while there is some scope to make minor variations to the first two sentences above, there is no scope to change the third. Specifically:

• “do not replace ‘man’ and ‘woman’ with ‘people’ or ‘persons’. This could signify the marriage of two people of the same sex which is specifically excluded by the definition.
• do not change the first part of the sentence to read: “Marriage as most of us understand it is…” (from page 75 of the Guidelines).

It is appalling that there is this level of government interference into something so personal, on what is supposed to be a special, some might say unique, day for the couple involved (and especially galling that it is supported by Australian conservatives who like to proclaim their support for ‘small government’).

It is even more appalling that LGBTI Australians, and indeed all people who support equality irrespective of sexual orientation, gender identity and intersex status, must sit through this recitation each and every time they simply wish to attend the wedding of their family members or friends.

I must admit that, at the last few weddings I have been to, this recitation, together with the fact that – more than four years into Steve and my engagement – there is still so little sign we will be able to marry in our own country any time soon, really got me down.

At one of these receptions, I recall looking up at my fiancé and, from the expression on his face, seeing that he felt exactly the same way at exactly the same moment. I don’t know if that makes it better or worse – to feel comfort in the fact that someone so close shares that burden with you, or to feel anger that the government makes the person who you care about most in the world experience pain. Actually, that’s not true, it’s definitely the latter.

And I’m sure that we’re not the only LGBTI-inclusive couple, or LGBTI individuals, who experience these emotions at weddings, who are hurt by the continuing rejection of our own love as equal, and who resent, bitterly at times, that the ban on marriage equality has transformed joyous occasions into bittersweet affairs.

This is not to say the ban doesn’t affect cisgender heterosexual people too, it does. It has become increasingly common for couples who are getting married and who value their LGBTI family members and friends, or who simply reject the discrimination against LGBTI relationships contained in the Marriage Act 1961, to either say themselves, or have their celebrant say, that they support the right of all couples to marry.

In fact, this ‘disclaimer’, usually read out before the abhorrent words of section 46(1), has become so commonplace that it has almost become modern wedding etiquette itself.

And it is truly lovely that so many people have chosen to do so. On a day that is marked by symbolism, expressing their disagreement with the prejudice of Australia’s marriage laws is an important symbolic gesture, and one that does make things that little bit easier (for this LGBTI Australian at least).

But, let’s face it, they shouldn’t have to. On their wedding day, cisgender heterosexual couples shouldn’t have to be making capital ‘P’ political statements, simply because successive Australian Governments have been homophobic in determining who can, and cannot, marry. After all, there is enough small ‘p’ politics at weddings – who is in the wedding party, who is invited/not invited, who sits where – already.

Of course, the only way to fix this is for Australia to finally catch up to the progressive world by introducing domestic marriage equality, thereby allowing couples like Steve and me to get married, and cisgender heterosexual couples to go back to arguing about what song should be the wedding waltz (come to think of it, with our music tastes I’m pretty sure Steve and I might ‘disagree’ about that too).

Until then, the fact that the ban on marriage equality makes attending weddings a bittersweet experience is definitely one of the things that I hate most about marriage inequality.