As the dust settles on the recent federal election, and the new Albanese Labor Government settles into office, I wanted to take this short(ish) opportunity to reflect on the term of Parliament just ended, and especially its impact on LGBTIQ Australians.
To the surprise of few readers of this blog, the reflection of the past three years in the rear-view mirror (now thankfully receding into the distance) is far from pretty. Indeed, in my opinion, the 2019-2022 term of the Morrison Liberal/National Government was the worst for LGBTIQ people in my lifetime, by some margin.
There are many reasons for arriving at this conclusion, chief among them the Religious Discrimination Bill, which came to dominate the Morrison Government’s legislative agenda, especially in its dying days.
Remember, this was a law that sought to legally protect offensive, humiliating, insulting and ridiculing comments against women, LGBT people, people with disability and people of minority faiths. By over-riding existing state and territory anti-discrimination laws, it also procedurally denied access to justice for victims of discrimination.
The Coalition’s Religious Discrimination Bill featured the broadest special privileges allowing religious organisations to discriminate against employees and people accessing their services of any anti-discrimination law in Australia.
If passed, it could have entrenched existing discrimination against LGBT students ‘under the guise of religious views’ – while it definitely would have permitted new forms of discrimination against LGBT teachers by over-riding states and territories that had already protected them.
And even though LGBT people were obviously not the only targets of what I would describe as legislated hatred, I don’t think anyone would deny that denying the rights of LGBT Australians was a primary motivator both for the Morrison Government itself, and for the religious fundamentalists who supported the Bill.
But the Religious Discrimination Bill was by no means the only attack on LGBTIQ people by the Morrison Government.
In the final 12 months alone, we saw all bar six Liberal and National Party Senators vote for a One Nation motion calling for an end to gender-affirming and supporting health care for trans children and teenagers (in June 2021).
In September, the Coalition also rejected straight-forward amendments to the Fair Work Act 2009 (Cth) which would have seen trans, gender diverse and intersex workers protected on exactly the same basis as others, including lesbian, gay and bisexual workers (for more, see: Pathetic, and antipathetic, in equal measure).
In February 2022, on the very day that the Religious Discrimination Bill was finally abandoned, Tasmanian Liberal Senator Claire Chandler introduced legislation seeking to ban trans women and girls from participating in sport. Despite being a private member’s bill, it was later explicitly and repeatedly supported by Morrison himself, and no doubt would have been a priority for his Government had they been re-elected.
And of course the election campaign itself was marred by the toxic transphobia of candidate for Warringah, Katherine Deves, hand-picked by Morrison himself in a transparent effort to invent a culture war and win the votes of bigots (for more, see: Ten months of transphobia).
Then there was the issue of LGBT students in religious schools, a topic about which the Morrison Government continually found new ways to disappoint, ultimately abandoning some of the most vulnerable members of the community.
The appalling treatment of LGBT kids during the Religious Discrimination Bill debate in February demonstrates just how little he, and his Ministers, cared about this group. Not only did Morrison’s proposed amendments only seek to prohibit expulsion – which would have allowed religious schools to continue to mistreat students in 1,001 other ways, from differential treatment and exclusion, through to discipline, detention, suspension and even asking them to leave).
But the calculated choice to exclude trans and non-binary children from any and all protection whatsoever (and therefore only to prohibit the technical expulsion of lesbian, gay and bisexual kids), was a wholly-prejudiced policy so heinous it can never be forgiven, and that includes anyone who voted for it.
The mistreatment of LGBT students also neatly illustrates why the last term of Parliament was truly the worst of times because, as much as what made the past three years horrific were the constant attacks on our community, just as damaging in the long run was the Morrison Government’s failure to take action to address long-standing human rights abuses against LGBTIQ Australians.
Not least of which are coercive surgeries and other non-consenting medical interventions on children born with innate variations of sex characteristics (otherwise known as intersex children).
Now, as someone who is in their mid-40s, I’m old enough to recognise that the last term of Parliament is not the only three-year period which has been challenging for LGBTIQ Australians.
Indeed, I suspect readers are probably thinking of two other terms which were also brutal – the 2001-2004 term of the Howard Government during which the marriage ban was originally passed, and the 2016-2019 term of the Turnbull/Morrison Government, and especially the plebiscite debate and then postal survey.
But I would argue that neither was as relentlessly awful as the three years just concluded.
In terms of Howard, it was really only the final six months of the 2001-2004 term during which he sought to use same-sex marriage (as it was then called) as a wedge against the Labor Opposition – the first two and a half years were awful for other reasons (especially in the (mis)treatment of First Nations people, and people seeking asylum) but did not specifically target LGBTIQ Australians in the same way as the Morrison Government.
And in terms of the 2016-2019 term of the Turnbull (and later Morrison) Government, I absolutely acknowledge that the debate about the plebiscite, in the last half of 2016, and then the postal survey (which, let’s not forget, was the idea of now-Opposition Leader Peter Dutton) in the last half of 2017, were completely unnecessary, totally divisive and ultimately damaging for far too many LGBTIQ people.
At the same time, it was nevertheless a debate about improving the legal recognition of LGBTIQ relationships, and the Australian people eventually delivered marriage equality, which was a welcome and long-overdue step forward (no thanks to the Liberal Party, who must never be allowed to claim credit for this outcome – see: Liberals Claiming Credit for Marriage Equality Can Get in the Bin).
In contrast, the debate around the Religious Discrimination Bill concerned a law that sought to strip existing rights away from LGBT people, including protections against discrimination, and the ability to go about our day-to-day lives without being subjected to offensive, humiliating, insulting and ridiculing comments simply because of who we are.
The Religious Discrimination Bill debate also dragged on far longer than the plebiscite/postal survey – with the first exposure draft released in August 2019 (followed by a second in December of that year), and the Bill not stopped until February 2022 (30 months later).
I should at least acknowledge two additional contextual factors which help to explain just why the past three years have been so rough – although neither reduces the culpability of the Morrison Government for its actions.
The first is that there was obviously a cumulative effect of the Abbott/Turnbull/Morrison Government’s homophobia, biphobia, transphobia and anti-intersex discrimination. With the safe schools debate and decision to de-fund it occurring in the first term, and the plebiscite debate and postal survey (plus religious freedom review) in the second, the LGBTIQ community was already worn down by seemingly continuous debates about our lives.
Although, as the Treasurer who allocated funding for the plebiscite and then postal survey, Scott Morrison is responsible for a significant share of that accumulated stress.
The second is there is no doubt the ongoing COVID-19 pandemic since early 2020 has exacerbated the harms caused by the Morrison Government’s attacks on our community, especially because it left us isolated and alone in our homes when we needed each other for support and reinforcement to fight back against the Religious Discrimination Bill.
But once again, that context does nothing to exculpate the outgoing Government – indeed, the fact they were willing to push ahead with this divisive legislation, during bushfires, and floods, and a global pandemic, and instead of doing anything to alleviate climate change, only renders them more guilty.
There is one last question which needs to be addressed, and that is: why does writing this down matter? Especially post-election?
After all, the Morrison Government has been defeated. The country has (thankfully) moved on. While for the LGBTIQ community, we already know the past three years were the worst of times, because we endured them, and for many have the scars to prove it.
To which I say there are still (at least) two reasons for publishing this article.
The first is to ensure the Coalition’s homophobia, biphobia, transphobia and anti-intersex discrimination is properly recorded.
This is especially important as the Liberal Party inevitably tries to rewrite the history of the recent past, to present some kind of softer, kinder, gentler image to the electorate. But there was nothing soft, or kind, or gentle, about 2019, 2020, 2021, and early 2022 for lesbian, gay, bisexual, transgender, intersex and queer Australians.
The second is because I think it helps to explain how many of us are feeling, right now. Yes, there is a sense of relief the attacks on us have ended (for now), but that welcome feeling doesn’t even begin to outweigh the sheer exhaustion from fighting constant battles over the last three, or six, or nine, years.
The tiredness in our collective bones.
On a personal level, and as an advocate with more than two decades experience, I will willingly concede the past three years have been the toughest of them all.
The end of 2021, when two years of a global pandemic was followed by the introduction of the final Religious Discrimination Bill in late November, was particularly rough. It is definitely no coincidence that, in late December, exactly three days after lodging our submissions to both Parliamentary inquiries into the Bill, I came down with shingles (the working title for this post was actually ‘Scott Morrison’s Homophobia Gave Me Shingles’ but I assumed, probably correctly, nobody would click on that).
My body was saying, loudly and clearly, enough. Especially as illness ruined the planned summer break, preventing me from seeing my parents in Queensland.
Of course, the Religious Discrimination Bill debate continued, relentless, rolling on into Committee hearings in early January and Parliamentary debate in early February. But so did my need to stand up for my community, and try to see it defeated. Which we did. Collectively. But it came with a significant cost.
For me, that was burnout worse than anything I have experienced before, and – being completely honest – which I’ve only just recovered from (and which helps to explain the lack of recent posts).
Anyway, the point of this is not to say ‘woe is me’ (I’m fine, now). But it is to acknowledge there are a lot of people still feeling pretty bruised and battered by the past three years. And so we should try to show the care towards each other that the Morrison Government didn’t.
Together, we saw off the Religious Discrimination Bill. Together, we can put the worst of times behind us.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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Wollongong, a regional city in NSW, is home to around 200,000 people, or less than 1% of the Australian population. However, despite its small size, Wollongong has played a significant role in the history of marriage equality in Australia. That includes political trailblazers in support of, as well as staunch advocates against, change, plus influential grass-roots community campaigners.
This article seeks to give recognition to those involved in the long and arduous struggle for marriage equality who called Wollongong home. And yet, for at least two reasons that will explained in detail later, this history can only ever be an incomplete one – deliberately leaving space for other stories, and voices, to be heard on this subject.
Political trailblazer #1: Michael Organ
The first political trailblazer was an MP who served less than two years in office: the former Greens Member for Cunningham, Michael Organ. Having somewhat unexpectedly won a by-election on 19 October 2002, Mr Organ was responsible for representing constituents in the Wollongong CBD and its Northern suburbs when Prime Minister John Howard first sought to ban same-sex marriage in 2004.
With the Labor Opposition supporting the Liberal/National Government’s amendments to the Marriage Act 1961 (Cth), Organ was the only member of the House of Representatives to speak out against the prohibition on same-sex marriage. In fact, as the only MP to oppose the ban, there was no formal division on the Marriage Amendment Bill 2004 when it was debated on 24 June, given calling for a division requires a minimum of two members. Nevertheless, Organ made his passionate views against the Bill known on the floor of the chamber:
The Marriage Amendment Bill 2004 is a disgrace. It is quite clearly discriminatory. It discriminates against those 20,000 couples in Australia that the ABS has recently told us want to be married, who are living as married couples and who are not heterosexual – they are part of the lesbian, gay and transgender community.
This is 2004 we are talking about. The government seems to be living in the fifties and seems to deny everything that has happened in regard to so-called gay liberation and rights for people of other sexuality. The government has its head in the sand on this matter.
In this day and age in Australia … there are gay and lesbian couples living in loving relationships as married couples. We cannot deny this. It is not going to change. It is part of our society and we have to embrace it. It is disgraceful for the government to come into this place – and for the opposition to support them – and to blatantly discriminate against those people.
It is a sad day for this parliament to be introducing such discriminatory legislation.
We have heard the Prime Minister come into this place and say, ‘I’m not going to discriminate against anyone based on their sexuality,’ yet here we have a blatant example of the government and the opposition supporting discrimination against ordinary individual Australians based on their sexuality. This simply cannot be condoned.
Thirteen years before the same-sex marriage postal survey, Organ was foreshadowing the arguments that would ultimately lead to a majority of Australians supporting marriage equality: that as well as being an issue of fundamental equality before the law, it was essentially about recognising the equal love between two people irrespective of sexual orientation and gender identity.
Organ had also been the only House of Representatives MP to speak against the Howard Government’s first attempt to ban same-sex marriage, earlier that month, legislation which did not progress because the Labor Opposition would not support provisions against overseas same-sex adoption. On 17 June 2004, he stated:
The Greens do not believe that allowing members of the LGBTI community to marry fundamentally undermines marriage. Indeed, such a desire can surely only strengthen it. If two people wish to make a public declaration of their love and longterm commitment, then their gender is irrelevant. We should remember that we are dealing here with the emotions, feelings and relationships of ordinary Australians.
Interestingly, one of the examples of legal discrimination against same-sex couples cited by Organ in that speech was the Howard Government’s refusal to subsidise the expenses of the former Member for Throsby, Colin Hollis’, long-term same-sex partner when Hollis represented the Australian Parliament at the United Nations, despite mixed-sex partners receiving this entitlement without question:
Hollis took his case to the Human Rights and Equal Opportunity Commission in 2001 but lost on the strict definition of ‘spouse’ in the legislation. Again, the government fought Hollis all the way. This blatant discrimination is an affront to fair-minded people everywhere.
During both of the Howard Government’s legislative attempts to prohibit same-sex marriage, the Member for Cunningham was the only voice in the lower house calling for full equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) couples. Consequently, the citizens of the Wollongong CBD and Northern suburbs were the only people in the country whose local member supported their right to determine for themselves who they should marry.
This does not mean the local community fully supported his decision to take such a stand. Nationally, a June 2004 survey conducted by Newspoll found only 38% of respondents were in favour of same-sex marriage, while 44% were against.
As Organ himself conceded to Parliament, local views on the issue were also divided:
I have certainly been made aware of the homophobia that has existed in the community in my electorate of Cunningham. Vile letters to the editor on this issue have appeared in the Illawarra Mercury since the Prime Minister raised the issue last year, and recently in response to my same-sex relationships bill – though I should point out to the House that the letters in support of gay marriage and gay rights have far outweighed the homophobic.
The reference to his ‘same-sex relationships bill’ actually represents another first for the Commonwealth Parliament: Organ’s Same Sex Relationships (Enduring Equality) Bill 2004 was the first Bill introduced that sought to permit same-sex marriage in Australia, out of a total of 23 such Bills introduced between 2004 and 2017. Sub-clause 5(2) of his Bill provided:
5 Discrimination on the basis of sexuality to be unlawful
(2) To avoid doubt this Act makes any distinction, exclusion, restriction or preference based on a person’s sexuality as it relates to;
(d) Employment Entitlements;
(e) Access to reproductive or health services;
(f) The lawful age of consent to sexual activity;
While the Bill was never debated in Parliament, and he went on to lose the seat of Cunningham at the election on 9 October 2004, in his short time in office Michael Organ was undeniably a trailblazer on the issue of marriage equality – a torch that was picked up six years later by a member of a different political party, representing the other electorate covering parts of the Wollongong community.
Political trailblazer #2: Stephen Jones
Stephen Jones was elected in the seat of Throsby at the federal election on 21 August 2010. Throsby – which was re-named Whitlam at the 2016 election – represents the southern suburbs of the Wollongong Local Government Area (LGA), as well as Shellharbour and parts of Wingecarribee Shire in the Southern Highlands. Less than three months later, Jones first used his position to speak out in favour of marriage equality, telling Parliament that:
[M]arriage is an important institution in our society. It is a special relationship where two people say to each other and to the rest of the world that they agree to be bound together in love, exclusive of all others, for life. I believe it would diminish us all as a society if we were to say that we may exclude gay and lesbian couples from this celebration. That marks them as somehow less worthy or even as biological oddities. I respect the right of religious organisations and others in our community to disagree with this view and to continue to practise in accordance with their beliefs. Indeed, no motion or act of this place can of itself change those beliefs. But it is an entirely different thing to ask of the state to enforce it.
Looking back on his history of engagement on the issue, Mr Jones reiterated that the principles of equally and fairness were motivating factors for his stand:
I was always on side, a supporter of marriage equality, even before I entered parliament. Going into my first election campaign, I was clear that, if there was a Bill, I would vote for it. But as is so often the case, issues can become more salient or important over time. As I thought more about the issue, I realised this was not something that could be ignored, or delayed. This was an issue of fairness, and equality, and I thought Labor should take a stand on it.
In 2020, it can be easy to underestimate how courageous this step was. Jones, a first-term MP, was speaking against not only the platform position of his party – the ALP remained officially opposed to marriage equality until its December 2011 national conference – but also of his then-Prime Minister, Julia Gillard.
In this context, it was inevitable that Jones’ stance would attract criticism – and it did, particularly from some right-wing figures within the Labor Party itself. Within days, Bob Harrison, former Labor MP for the state seat of Kiama, had written to the Illawarra Mercury that ‘Marriage must be defended’:
The Government must fearlessly and without diffidence defend the institution of marriage as involving vows between one man and one woman, while rejecting out of hand illogical and ideologically driven demands of social engineers and politicians who conspire with the Greens for unprincipled preference deals.
This opposition continued in the following year, with then-state Labor MP for Wollongong, Noreen Hay, leading what was described as:
a rebellion against Labor federal counterpart Stephen Jones, winning a key motion in his seat of Throsby which undermines his public stance on same-sex marriage. The humiliating defeat reflects widespread anger among ALP members in Mr Jones’ electorate, who feel they were not consulted about his position on the issue.
Mr Harrison again attacked Jones through the media in early 2012, writing that:
Heterosexual marriage involving one man and one woman, in any case, must be preserved and recognised as a unique institution among all human relationships, predicated on the creation of new life and the preservation of family life Australians have always known. Australian children have a right to know, bond with and share the love and protection of both a mother and a father. No other form of human or social relationship can hold out the promise of this benefit to future generations.
Reflecting on this internal backlash almost a decade later, Jones remains convinced his pro-equality approach was the correct one:
I was copping a whole heap of shit from some people for the stand I was taking. People in the Party who were strongly against it were using it to campaign against me. I had an opponent who was knocking on doors telling people I was supporting same-sex marriage and that was a reason people shouldn’t support me. I was initially a little bit worried about the fall-out, but once you take the first step, and the second – especially on an issue of principle – then you just keep walking towards the outcome you think is the right one. Overall, I guess I did lose a little bit of support in some quarters, but I did what I thought was right.
In fact, despite these prominent local opponents, in February 2012 Jones would go on to introduce the first private members bill to legalise same-sex marriage to come from a major party MP (Labor, Liberal or National Party) – which also meant it was the first marriage equality bill that had a realistic chance of succeeding.
His first reading speech on the Marriage Amendment Bill 2012 had echoes of the earlier parliamentary contributions of Michael Organ in 2004:
I believe that God made us all equal but different-not differently equal. The object of the bill is to remove discrimination and advance equality. It will ensure that when same-sex couples make a voluntary commitment to be together for life, to the exclusion of all others, and they choose to have that relationship solemnised, it will be recognised at law in the same way that my marriage is…
I believe there is a stronger force which guides us in matters like this. It is the right to equality-the human right not to be discriminated against on the grounds of sexuality. Human rights are inalienable rights, recognised and protected by governments, not created by them. They should never be qualified by fear or prejudice.
Debate about Jones’ Bill, both inside and especially outside Parliament, dominated national discussion for the following six months. Ultimately, it became the first same-sex marriage bill to be debated by both chambers of Parliament since Howard’s original ban on same-sex marriage in August 2004. Jones continued to push for equality before the law as the Bill was debated in September 2012, in his summing-up speech:
The case for the bill is simple. It is about equality, it is about recognition of relationships-the validation of those relationships-and it is about saying to people who are often excluded, alienated or discriminated against: ‘You know what? You are okay. What’s more, you are better than okay: your relationship is just as valid as mine is in my marriage to my wife. And if you seek to have that relationship described as a marriage and recognised by the state as a marriage then who are we to stand in your way?’
Unfortunately, at least for supporters of marriage equality, his efforts were not successful, primarily because the Liberal/National Opposition, led by Tony Abbott, would not grant a conscience vote to its members, unlike the Gillard Labor Government. The result: it was comprehensively defeated by 98 votes to 42 votes in the House of Representatives (although Labor MPs did vote in favour by a margin of 38 to 26).
Following this defeat, it would have been understandable had Jones decided to appease his internal critics and instead focus his energies on other matters. Perhaps even more following the defeat of the Rudd Labor Government on 7 September 2013, and consequent relegation to the opposition benches. However, Jones remained steadfast in his support of marriage equality, including his criticisms of the recalcitrance of the then-Abbott Liberal/National Government.
For example, in December 2013, Jones spoke out following the High Court’s decision to invalidate the ACT’s same-sex marriage legislation, and therefore invalidate 31 marriages of same-sex couples:
I believe that on this issue members of this place are lagging behind public opinion. I believe we are different but equal and we should not be differently equal before the laws of this place. I call on members opposite and I call on the government to allow its members to have a conscience vote on this issue when a bill is next brought before us.
Jones also reflected the views of the community, and especially of LGBTI Australians in opposing the proposed plebiscite on same-sex marriage, first put forward by Prime Minister Abbott in August 2015, and adopted by his successor, Malcolm Turnbull. In the February 2016 debate on another unsuccessful marriage Bill, Jones stated:
I am not opposed to referendums, but we do have to wonder why this matter is proposed to be put to a referendum, given that it is our job, as parliamentarians, to vote on matters that are put before us, and we have a matter put before us. We are told that the cost of that referendum is going to be $160million-only for it to have a non-binding outcome…
After his re-election at the July 2016 federal election, and now representing the renamed seat of Whitlam, Jones continued his fight against this unnecessary public vote, in-part because of its detrimental impact on the LGBTI community:
I spoke to them about their very real concerns. I think it would have been an abrogation of my responsibility for me-as I have said, as a privileged, white, heterosexual male-to say, ‘C’mon, we can toughen up; we need not be concerned about these issues,’ and not listen to their concerns and their lived experiences. To a person, they were concerned about the impact of the plebiscite on their children or on young LGBTI people.
If this plebiscite bill gets up, if the vote goes ahead, we will spend the next nine months talking about nothing more than the sexuality of people who choose a different partner to me, and that is not what the Australian people are after. That is not why we were sent here to Canberra.
More simply, he told the Illawarra Mercury “It’s not like these issues are complex, this is something the Parliament should just get on with and deal [with].”
Predictably, Jones strongly criticised the Government’s decision to hold a same-sex marriage postal survey, via the Australian Bureau of Statistics, after their plebiscite bill had been defeated:
The third envelope is going to be the one that is the most expensive of all. That is the envelope that is costing Australians $122million, the envelope which shows how out of touch this Prime Minister and this government really are: the unnecessary and expensive envelope which will have a postal vote on same sex marriage.
As we now know, that postal survey recorded a solid Yes vote nationally, and the Commonwealth Parliament subsequently debated Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – as well as a number of amendments from conservative MPs seeking to undermine it through extensive new ‘religious exceptions’. Jones continued to fight for the principle of full equality, and against these special privileges, in the House of Representatives:
[W]hen you act as a civil celebrant, you’re performing a civil ceremony, not a religious ceremony, and you are exercising a function under our law. It should be that the people who are exercising the function under our law are equally bound by it. There should be no basis in relation to civil celebrants which permits discrimination.
The detailed account of Stephen Jones’ actions in support of same-sex marriage, outlined above, reflects the often complex, sometimes tortuous, unacceptably lengthy process it took Commonwealth Parliament to make marriage equality a reality. Throughout, his support for this reform was steadfast – indeed, there were few better friends to the cause of LGBTI rights, from any political party, during the past decade than the ALP member for Throsby/Whitlam.
Asked to nominate personal highlights of the long fight for marriage equality, Jones spoke, in magnanimous terms, about the day it was finally passed by parliament:
[I]n particular seeing close to 150 people on one side of the chamber, and just a small handful of people opposed (plus a few who ran from the chamber…) It was a genuine moment of unanimity. It was a good thing, for the country’s representatives to come together in that way. As a Labor person, I would have obviously preferred for us to have achieved it earlier as the Government. But as an Australian I was delighted to see it finally happen.
He also raised the positive legacy of marriage equality for Australia:
I felt proud for the country on this issue. That we had actually done something, achieved something. So many issues currently are dominated by intractable conflict – social, economic, environmental issues – that we seem incapable of achieving systemic change. Here was an issue which showed that positive change can still happen, that we can still resolve issues that are contentious.
If that assessment is correct, then the Member for Throsby/Whitlam played a key role in making it happen – something he can forever be proud of, and which again reflects the oversized contribution of the city of Wollongong in the history of marriage equality in Australia.
2017: Wollongong Says Yes in the Same-Sex Marriage Postal Survey
The announcement of the results of the same-sex marriage postal survey, by Australian Statistician David Kalisch on Wednesday 15 November 2017, confirmed that the local Wollongong community strongly supported marriage equality.
While Australia ‘voted’ yes by a margin of 61.6% yes to 38.4% no, both electorates which include parts of the Wollongong LGA voted yes at higher rates than the national average:
Cunningham: 65.7% yes versus 34.3% no, and
Whitlam: 62.3% yes versus 37.7% no.
These results were also significantly higher than the NSW average as a whole: 57.8% yes against 42.2% no, an impressive achievement for a regional city. Indeed, Stephen Jones highlighted this aspect of the postal survey vote in his speech on the Smith Bill:
If you applied the common prejudice that says that regional folk are less progressive than are their city cousins, you’d conclude that the city overwhelmingly voted in favour and the regions overwhelmingly voted against. Well, you’d be wrong. Of the 62 regional seats, only three voted against marriage equality. This confounds those views that regional Australia is somehow less progressive on these sorts of issues and less welcoming of diversity than people in the inner city. Regional electorates like mine have shown themselves to be open places that are willing to embrace same-sex couples.
The high yes vote is even more impressive considering the demography of Wollongong, as reflected in the 2016 Census. One of the factors associated with higher levels of support for marriage equality traditionally has been university education – however, Wollongong reported lower-than-average rates of holding a ‘Bachelor Degree level and above’ (19.9%, compared to 23.4% for NSW and 22.0% nationally).
Even more significantly, Wollongong LGA reported higher rates of religiosity in the 2016 Census than elsewhere, including:
25.6% Catholic, compared to 24.7% (NSW) and 22.6% (Australia)
16.6% Anglican, compared to 15.5% (NSW) and 13.3% (Australia), and
4.3% Eastern Orthodox, compared to 2.5% (NSW) and 2.1% (Australia).
It is tempting to say that, despite this religiosity – and the views of major church leaders – the people of Wollongong voted yes. However, in the postal survey the congregations showed they were in fact ahead of their respective church positions. When asked about this discrepancy, Jones made the following observation:
[T]he paradox is that the Wollongong community is also quite a religious, and multicultural, community and there were obviously some people who were strongly opposed [to marriage equality] too. But many people of faith supported marriage equality as well, even though the church leaders were opposed. To some extent, the congregation were no longer listening to the church leadership on questions of sexual morality, after the church scandals of the 1980s and 90s.
The obvious question is why the Wollongong community as a whole, religious and non-religious folk alike, was so willing to embrace full legal equality for LGBTI relationships. And it is possible that having political trailblazers like Michael Organ and Stephen Jones helped to move the debate forward here more rapidly than in other places.
However, it is far more likely that progress was achieved because of the tireless work of community campaigners, over many years, to persuade their family members, friends, neighbours and wider community that LGBTI relationships were just like any other relationship, and should therefore be entitled to the same legal recognition as any other relationship.
Community Campaigners: Evelyn Gray
Lead marriage equality campaigner at GetUp! during the 2010s, Sally Rugg, has written that:
Every inch of LGBTIQ progress has been fought for, and won, on a foundation of [our] community’s personal stories. We tell stories to connect, to resist, and in the hope that those listening might see their own history reflected in ours.
Some of the most powerful of those stories have come from parents of LGBTI Australians, speaking up for the equal treatment of their children under the law. While nationally that role was filled (more-than-capably) by Shelley Argent, the Australian President of PFLAG (Parents and Friends of Lesbians and Gays), in NSW one of the leading ‘proud mums’ was Wollongong local Evelyn Gray.
Asked in 2020 ‘why marriage equality was so important to [her] personally?’, Ms Gray answered:
My husband and I have two daughters, one gay and one straight. Our story was a very common one – wanting our gay child to have exactly the same rights as her straight sibling. I was incensed when John Howard amended the Marriage Act in 2004 to specifically exclude same-sex couples, and so began my marriage equality journey.
That journey was both lengthy, and incredibly active, including being the admin for the Facebook page ‘Wollongong for Marriage Equality’ (now LGBTI Equality Wollongong) for 8 years and counting, a site she used for publicizing marriage equality rallies, sharing petitions and other calls to action, and for co-ordinating local media requests. Coincidentally, Gray was asked to create the page on a 2011 lobbying trip to Canberra with Shelley Argent and other PFLAG mums.
That trip was one of many activities in lobbying politicians to support change, both locally (Gray recalls emailing and visiting the offices of local MPs Stephen Jones and Cunningham MP Sharon Bird multiple times in 2011 and 2012) and nationally. Indeed, on one trip to Parliament House Gray was told by one Senator that “It’s about time homosexuals stopped playing the victim card and trying to bring down the institution of marriage”.
Gray wasn’t afraid of speaking truth to power either, garnering publicity for her response to a 2016 ‘Valentine’s Day’ social media post from then-Prime Minister Malcolm Turnbull to his wife Lucy:
Congratulations on your happy marriage. I’m very lucky also to have been married for over 40 years. However, my husband and I are saddened that our gay daughter is still waiting for the same right as her sister; the right to marry the love of her life. No plebiscite please – a free vote in Parliament is all it will take!
Like many other marriage equality campaigners, Gray regularly exercised her writing skills, including letters to the editor of the Illawarra Mercury, as well as composing ‘many letters, emails [and] submissions to Federal MPs and Senators re amending [the] Marriage Act, allowing [a] conscience vote, against a plebiscite, telling [a] personal story’, while persuading ‘family and many friends to do the same.’ Gray even contributed a chapter to the 2011 essay collection Speak Now: Australian Perspectives on Same-Sex Marriage.
In addition to more traditional lobbying tactics, Gray engaged in more direct, grass-roots action, attending and marching in countless rallies. She recalls the final poster she demonstrated with proclaimed ‘How many more bloody posters do I have to make before my gay daughter can marry?’ Gray also marched in five marriage equality floats in the Sydney Gay & Lesbian Mardi Gras Parade between 2013 and 2018, including in 2015 with a poster thanking Sharon Bird for her support.
Her activism continued during the 2017 postal survey, including making and distributing posters which said ‘This small business is big enough to support marriage equality – Vote’, using the Wollongong for Marriage Equality page to drive both enrolment and voting (one post featured her ’90-year old mum proudly holding her survey’), door-knocking, letterboxing, ‘placing stickers around town’, literally flying the rainbow flag from her house and attending the ‘Yes to Marriage Equality’ rally at the University of Wollongong.
Evelyn Gray was indefatigable in advocating for her daughter’s right to marry. It is no surprise that, when writing their history of the marriage equality campaign, Australian Marriage Equality (AME) convenor Alex Greenwich and LGBTI historian Shirleene Robinson observed the following:
Evelyn Gray, the mother of two daughters, one straight and one gay, who was one of the movement’s strongest and most dedicated allies…
For her part, Gray remembers many highs, and lows, along the path towards equality. Among the former were being in Prince Alfred Park in Sydney for the announcement of the postal survey results and ‘seeing the joy and relief on the faces of the crowd’ while ‘dancing for joy with another parent activist’, the passage of marriage in Commonwealth Parliament a few weeks later, and working with long-time activists like Shelley Argent and Rodney Croome. Personal lowlights included Tony Abbott denying a conscience vote to Coalition MPs on Stephen Jones’ Marriage Amendment Bill in 2012, causing that legislation to be defeated.
Of course, Gray was only one of many voices in the Wollongong community who pushed for marriage equality over many years. When asked now ‘Why do you think the Wollongong community responded so positively to marriage equality?’ she was quick to nominate a range of people who helped make change happen:
‘Stephen Jones was always very public about his views, advocating for the principles in which he believed, spoke up against hate speech in the community, spoke on local radio using common sense arguments, organised a marriage equality workshop in his electorate to teach how to effectively advocate for marriage equality.
‘Sharon Bird, although initially sat on the fence on marriage equality, declared her support after gauging her constituents’ views on same-sex marriage’ and
‘Strong campaigning from: Illawarra Rainbow Labor, Paul Scully, Labor councillors, Young Labor, The Greens, and Simon Zulian.’
Gray also praised the role of the Illawarra Mercury in ‘featur[ing] personal stories of local gay couples and families, publish[ing] letters from supportive readers, survey[ing] Wollongong Council election candidates on their stance on the postal survey.’
Stephen Jones was similarly keen to highlight local voices in favour of marriage equality throughout the campaign. After introducing his Marriage Amendment Bill 2012, he spoke about a Wollongong couple denied the right to marry:
Peter [Bearman] is a diesel mechanic and James [Pollack] is a university student. It is their fervent hope and the hope of their mother, whom I met last weekend, that one day they will be able to get married here in Australia. It is with that story in mind that I moved in the House today a private member’s bill that would amend the Marriage Act 1961 to permit couples like Peter and James to get married here in Australia.
And in his speech on the Smith Bill five years later, Jones acknowledged:
In my own region, there was Illawarra Rainbow Labor. I want to recognise Caitlin Roodenrijs and my dear friend Simon Zulian, who dedicated his tireless campaign work to his deceased partner, Kane-the love of his life who he never had the opportunity to marry. I salute you, Simon, for your tremendous work.
The names cited by Evelyn Gray and Stephen Jones are just some of the locals who contributed to the fight for marriage equality from the time it was banned by the Howard Liberal/National Government until it was finally legalised in December 2017.
This history is and will forever be incomplete. Not just because of space constraints – even if this were a book, rather than a 10,000-word article, it would not be possible to do justice to all of the community campaigners on this issue.
It is also because of the nature of the marriage equality movement itself. In the words of then-AME convenor Rodney Croome:
“Real change takes time. It’s rare that a single conversation will make the difference,” he said.
“It’s an accumulation of conversations and then there will come a point where… the penny will drop.”
But the principles of sharing personal stories and engaging emotionally were still vitally important to the marriage equality campaign, Mr Croome said.
Which means that support for marriage equality in Wollongong was driven by thousands of people, having tens of thousands of conversations, over many years, until 60,906 people in Cunningham, and 57,562 people in Whitlam, answered the question ‘Should the law be changed to allow same-sex couples to marry?’ with an unequivocal yes in September and October 2017.
Wollongong Opponents: Concetta Fierravanti-Wells
While the preceding sections might paint the picture that the entire Wollongong community supported marriage equality, that is obviously not the case – after all, 31,840 people in Cunningham, and 34,879 people in Whitlam, responded no in that same-sex marriage postal survey.
Chief among the opponents to marriage equality, not just in the Illawarra but also nationally, was Liberal Senator Concetta Fierravanti-Wells. A Wollongong local, Fierravanti-Wells was one of the most vocal figures in Parliament against full equality for LGBTI relationships.
During a 2008 debate on the Same Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill, Senator Fierravanti-Wells spoke out against marriage equality, even though it was not being proposed:
Marriage is a unique institution in our society and it is one that we… should do everything in our power to protect, and ensure that it is supported, encouraged and backed up in every way, shape and form… Marriage is a very important institution not only for the traditional Anglo-Saxon culture in this country but also for so many others in our culturally diverse community. It is the important umbrella institution which helps to nurture children in an environment where they can grow and prosper. Indeed, the traditional form of marriage in my view provides the best form of security in our society… Often people talk about the silent majority in this country. I think that the silent majority in this country would agree about the sanctity of marriage and the sanctity of what is the traditional family.
It was a position Senator Fierravanti-Wells would not deviate from over the following decade, including using colourful, and at times controversial, language against the Senate version of Stephen Jones’ Bill in September 2012:
I doubt that most people who are pushing these amendments are overly religious or even intend on staying in a monogamous relationship, which begs the question: why do they want to get ‘married’? The chattering classes do not want to concede that, by amending the Marriage Act, they are in fact denying the rights of the silent majority who want to uphold the sanctity and true meaning of marriage and who want to keep some tradition going in a world that seems to be forever throwing out the old and bringing in the new.
One must ask: where will this all end? You do not have to look very far to find the answer. There are already legal challenges in Canada and Utah that have been brought forward by polygamists who claim they have a right to polygamous marriage, and polyamorous activists are relentlessly campaigning for legal recognition of their relationships.
It is perhaps unsurprising that the more inflammatory parts of this speech were picked up in local media.Equally predictable is the fact Fierravanti-Wells used the speech to criticise Stephen Jones for introducing his legislation:
Same-sex marriage is a 10th order issue. It galls many in the Illawarra, where I was born and where my electorate office is located, to see their local member for Throsby, Stephen Jones, championing this cause above more pressing issues for his constituents.
As a Minister in the Turnbull Liberal/National Government in 2016 and 2017, Fierravanti-Wells supported holding a plebiscite on same-sex marriage, and when that was defeated, the same-sex marriage postal survey. Indeed, she actively campaigned for a no vote in the ABS’ statistical survey:
“I believe marriage is between a man and a woman; two different genders coming together in one unique union,” Senator Fierravanti-Wells told the Coalition for Marriage launch on Saturday. “This is what it has been for every culture, every ethnicity, every faith, in every corner of the world for thousands and thousands of years. I am so proud to stand with you and millions of my fellow Australians who will be voting ‘no’.”
However, when the nation, NSW and both electorates in the Illawarra voted yes in her own government’s postal survey, Fierravanti-Wells still refused to concede defeat, including this attempt at mathematical sophistry when Senator Smith’s Bill was considered by the Senate:
A conveniently overlooked statistic is that 16 million voters were eligible to participate and of those just 7.8 million returned a ‘yes’ vote on this survey form. This represents 48 per cent of the voting population. This is not the enormous majority that the elites are spinning. Indeed, it is not a majority at all. In fact, 52 per cent of the voting population either voted no or did not vote at all…
As that legislation progressed through detailed consideration by the Senate, Fierravanti-Wells spoke in favour of a wide range of amendments to insert ‘religious freedom’ clauses, including the adoption of separate definitions of marriage in the Marriage Act 1961 (Cth) itself, as well as to allow all civil celebrants to refuse service to LGBTI couples. Each proposal was, thankfully, ultimately defeated.
On the final vote, despite being part of a Government which imposed the postal survey on a community, and especially an LGBTI community, which did not want it, Senator Fierravanti-Wells did not honour the yes vote of the Australian electorate:
For many people of different backgrounds and religions, this will be a very difficult day. This will be a difficult day in Australia. As we talk about respect, I think it’s very important to remember this respect across this divide… I cannot support this bill in its current form for these reasons, because there are many people-like my parents, who came to this country-who just cannot. For them, it’s very difficult, and I think that they deserve our respect as well.
Inevitably, Fierravanti-Wells’ lack of respect for the outcome of the postal survey was the subject of a critical editorial in the Illawarra Mercury:
The 12 senators sitting on the ‘No’ side of the house included Wollongong-based Senator Concetta Fierravanti-Wells. This was despite a resounding Yes vote right across the Illawarra and South Coast. Senator Fierravanti-Wells was sitting alongside Senator Eric Abetz, one of the most passionate and prominent supporters of the ‘No’ campaign… Their votes will be recorded for history and only history and their voters will judge them.
To some extent, Fierravanti-Wells’ actions on this issue are the mirror image of Stephen Jones’ – a passionate, and unrelenting, advocate for her view. The two primary differences being that he was advocating for the equality of all residents of Wollongong, while she campaigned against the rights of a minority, and that her position ended up on the wrong side of history, both nationally and in her community.
Of course, she was not alone in advocating against marriage equality in the Wollongong area. Fierravanti-Wells was joined by key religious leaders, including Bishop Peter Ingham who issued the following statement to be read at all Catholic masses on the weekend of 2 and 3 September 2017 – the start of the postal survey period:
[A]cross the breadth of human cultures and religious faiths, we contend for the truth that our society is best-served by retaining the traditional understanding of marriage as the union of a man and a woman, voluntarily entered into for life, and provides the basis for the creation of a family in which, wherever possible, children can be raised in a loving and stable environment by their own mother and father. In human terms, there is nothing more powerful than the union of a man and a woman, which is the only relationship that can bring about new life. It has no equal.
St Michael’s Anglican Reverend Sandy Grant also made the following ill-informed and frankly prejudiced remarks during the same-sex marriage postal survey:
Mr Grant spoke of a ‘slippery slope’ that could occur when same-sex marriage is legalised. For instance, he believed removing the need for people of the opposite sex to marry could lead to polygamy or under-age marriage.
“Some Muslims are already pushing this… the legalisation of marriage in Australian [sic] to allow polygamy,” he said.
“This shows the sheer inadequacy of the love is love slogan. Do you think a 30-year-old man should be able to marry a 12-year-old girl if they both consent and say they love each other?”
However, as we saw earlier, despite their concerted efforts – and the higher rates of people identifying as Catholic and Anglican in the Wollongong LGA – local congregations clearly did not follow this instruction, voting yes at a higher rate than both the national and NSW figures.
Evelyn Gray thinks this was in part because ‘they were able to see the distinction between religious and civil marriage’:
I remember bringing up the subject of same-sex marriage about 10 years ago with a very good (religious) friend of mine, whose immediate reaction was to strongly oppose the idea, but changed her mind in about 30 seconds when I explained that it was about civil marriage, not holy matrimony.
Finally, there is one more intervention for the no campaign which warrants particular mention: Wollongong provided arguably the highest profile intervention by a same-sex couple arguing against marriage equality during the postal survey.
On 4 September 2017, local couple Ben Rogers and Mark Poidevin appeared on the ABC’s 7:30 Report to advocate for a no vote. As later reported by ABC News:
Ben said while he respects that other couples might want to wed, he is committed to preserving traditional marriage…
“When I first came out I think one of the consequences was giving up marriage and children and things like that.”
Mark, a committed Catholic, has changed his stance on same-sex marriage since he proposed to Ben five years ago.
“If we make one exception for one community, that being the same-sex couples, where does it stop?” Mark said.
“Do we then see other cultures being allowed to have multiple marriages? Do we see the age of consent being lowered for another group of minorities? That is my concern, of where it would lead.”
It was an unusual contribution to the debate, and the local community was not persuaded by their arguments, but given its prominence their perspective nonetheless deserves to be part of the history of marriage equality in Wollongong, alongside other local opponents like Concetta Fierravanti-Wells and church leaders.
The (Limited) Role of Wollongong Council Pre-Marriage Equality
While MPs and Senators representing the Wollongong area played a leading role in arguments both for and against marriage equality, Wollongong Council itself did not. Unlike a number of Local Governments around Australia, including both Kiama and Shoalhaven Councils, Wollongong Council did not formally endorse marriage equality in the years leading up to the postal survey.
Following the announcement of the postal survey in August 2017, there was a concerted push to have Wollongong Council fly the rainbow flag during the voting period, with a public protest outside council chambers on 21 August:
Among those who attended was Figtree mum Evelyn Gray, who held a placard saying she was ‘waiting to be mother-of-the-bride for my gay daughter”. Ms Gray said her two adult daughters had found “the loves of their lives”, but only one of them was able to marry.
However, with the Council elections scheduled to be held on 9 September 2017, there was no opportunity to hold a meeting before then – and it was not on the agenda for the extraordinary council meeting on 9 October 2017. This meant any motion to raise a rainbow flag in support of the local LGBTI community would not be passed in time for the voting period.
Nevertheless, at the Ordinary Council Meeting on 30 October 2017, Greens Councillor Mithra Cox moved, and Labor Councillor Tania Brown seconded, a motion that:
Council fly a rainbow flag on the flagpole outside Council’s Burelli Street Administration Building until 17 November 2017 as-
Recognition of the diversity of the people in our City and that this diversity is shown in many forms; and
Flying the flag can stand as a symbol of Council’s support for this diversity.
Following what was described as ‘a tense and at times tearful debate’, the motion was passed by 8 votes to 4, with Lord Mayor Gordon Bradbery falling into the latter category (although he nevertheless supported marriage equality overall).
The Positive Legacy of Marriage Equality in Wollongong #1: A Cosmopolitan City
While Wollongong Council did not play a leading role during the marriage equality debate, it has subsequently sought to build on its outcome – in particular, by emphasising the inclusive nature of the local community. In July 2019, the Council unanimously moved a resolution proposed by Councillor Tania Brown that:
Wollongong City Council install a permanent Rainbow Crossing, in a prominent Wollongong foreshore location, to show our ongoing support for the LGBTQIA+ community and reflect Wollongong’s status as an inclusive and welcoming city. Staff to report back on suitable locations via an information note within one month.
The rainbow crossing was developed within a matter of months, and unveiled before the end of 2019:
Acting lord mayor Tania Brown – who led the charge to have the crossing painted earlier this year to counteract homophobia and hate speech – said the new pride symbol, which appeared overnight outside the Novotel Northbeach [on Cliff Parade], would become a popular photo spot at Wollongong’s busiest beach.
However, while the rainbow crossing is a tangible sign of inclusivity post-marriage equality, it is arguably not as important as the outcome of the postal survey itself, in which the Wollongong community showed itself to be a cosmopolitan city, willing to warmly embrace their neighbours irrespective of their sexual orientation and/or gender identity.
That outcome remains one of the positives of the marriage equality movement cited by Stephen Jones:
Although I opposed the postal survey, I remember when the result came in and returns from the Illawarra community were on par with, or even a bit better than, the NSW average and the national average, that was really satisfying to see. That our community was not out of step with the rest of the country, but was actually part of the vote for change.
It was a really great outcome in a lot of ways, including economically. There is a lot of research (including by economists like Richard Florida), that the acceptance of sexual diversity is closely linked to economic growth. The result showed that the Illawarra accepted difference.
For Evelyn Gray, the benefits of the high yes vote in the postal survey, and passage of marriage equality, are more personal:
I think it’s resulted in a more caring and accepting community as a whole, with couples more likely to be seen holding hands in public, [with] drag storytime at the library becoming increasingly accepted, [and] more local groups accepting young LGBTI people, [as well as] rainbow family playgroups.
The Positive Legacy of Marriage Equality in Wollongong #2: Happy Couples
Obviously, the most tangible – and, in the author’s view, most important – positive legacy of marriage equality in Wollongong is the fact local LGBTI couples are now permitted to marry under Australian law, or for couples who were not prepared to wait for the law to change, to have their overseas marriages legally recognised.
It is not possible to determine the exact number of same-sex couples currently living in the Wollongong LGA. However, with 46,770 same-sex couples recorded nation-wide in the 2016 Census, and Wollongong LGA constituting just under 1% of the Australian population, it is likely that the number is somewhere between 300 and 500. And with 6,538 same-sex marriages registered in the first year after marriage equality took effect, that means dozens of same-sex couples marrying in Wollongong in 2018 alone.
Far more important than these numbers, however, is the fact each of these couples has their own unique story, like the first reported couple in the Illawarra who took advantage to the change in the law at the start of 2018:
On Tuesday morning, two months after the ‘yes’ vote was delivered but just nine hours after their union became legally allowable, Michael [Hobbs] wed his long-time partner Edward [Kwok-Hobbs] at a ceremony at Wollongong’s Lagoon restaurant.
Michael reflected on what being married meant to him: ‘It gives us security, a feeling of acceptability. Our civil rights have been met now. It’s way overdue, but this is a lot to us.’ However, in a sad reflection on the considerable delay which LGBTI couples in Australia endured on the walk down the aisle:
The men say their nine-year relationship has long had the support of their families. Michael’s father attended their commitment ceremony, but didn’t live to see the day his son could marry.
“He would have been over the moon,” Michael said.
“My mum can’t come today because she’s housebound but she’ll be waiting for all the gossip when we get home.”
The passage of time – and the delay in Australia achieving marriage equality – was also a theme of another local Tonina Harvey, when describing the challenging path to her wedding to now-wife Kt Harvey:
We were going to go to NYC to get married in 2016 but unfortunately I got breast cancer and all plans were put on hold. Getting sick we were faced with my mortality and the lack of legal standing of our relationship. When the plebiscite was announced – we had a feeling of disbelief that after 38 years of life together, the country had our destiny in their hands. Therefore the outcome was a relief!
We had a large wedding (150) on the 4th [of] August  and it was the first time in our lives that we had all of our family in the same room as our friends – we thought it would either be a disaster or ok. It turned out to be fabulous!! The amount of happiness and acceptance in the room was overwhelming. We had an absolutely wonderful day and feel that we would love to do it all over again!
[O]n the 4th August we will celebrate our 2nd wedding anniversary and on 11th August our 40th year together! As we have aged having the legal security of a marriage certificate is reassuring.
There are already literally dozens of stories like Michael and Edward, and Tonina and Kt, of same-sex couples who have finally had the opportunity to wed following the passage of marriage equality in late 2017. And there will be hundreds more in the years, and decades, to come – which is the second reason why this article is necessarily ‘An Incomplete History of Marriage Equality in Wollongong’ – because that history is being written with each and every wedding of a local LGBTI couple.
Conclusion: An Oversized Role, but a Story that Continues
In the preceding sections, we have seen how MPs for Cunningham Michael Organ and Throsby/Whitlam Stephen Jones were among leading parliamentary voices for change. And how Senator Concetta Fierravanti-Wells was one of its ardent opponents. In the local community, Evelyn Gray was one of many influential campaigners for marriage equality – although, as discussed, this article could have just as easily highlighted several others.
Based on the passionate advocacy of Organ, Jones, Gray et al, the small, regional city of Wollongong played an oversized role in the history of marriage equality in Australia. A history that is still being written in the stories of LGBTI couples who finally have the opportunity to walk down the aisle and wed the person they love.
Stephen Jones MP, via telephone, 22 June 2020
Evelyn Gray, written interview, 9 July-28 July 2020
Tonina Harvey, written interview, 19 July-28 July 2020
[NB Senator Concetta Fierravanti-Wells, Catholic Bishop Peter Ingham and Anglican Bishop Peter Hayward were all provided with interview questions in June 2020, however none responded.]
Alex Greenwich and Shirleene Robinson, Yes Yes Yes: Australia’s Journey to Marriage Equality, NewSouth Publishing, 2018
Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, Port Campbell Press, 2011 (e-book)
 ‘Thanking Stephen Jones MP for his efforts to bring about equality for same-sex couples, replying to his critics, [and] correcting falsehoods about public support for marriage equality’: Written interview with Evelyn Gray, 9 July-28 July 2020.
 Written interview with Evelyn Gray, 9 July-28 July 2020.
 Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, 2011 (e-book).
 Written interview with Evelyn Gray, 9 July-28 July 2020.
This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.
12 months ago today, the House of Representatives passed Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017.
It was the culmination of more than 13 years of campaigning by Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities.
When that law took effect, two days later, Australia finally permitted same-sex couples to wed and recognised the marriages of most[i] LGBTI couples.
But we did not achieve genuine marriage equality – nor do we enjoy it exactly one year later.
This is because the terms and conditions which apply to the marriages of LGBTI couples after 9 December 2017 are different to those which applied to cisgender heterosexual couples before that date.
First, and most importantly, at the time of writing, forced trans divorce – where a transgender person who is already married cannot gain access to accurate identity documentation unless they first divorce their partner – still exists in Western Australia and Tasmania[ii] (while legislation to abolish forced trans divorce has only passed in the Northern Territory in the past fortnight).
One of the positive aspects of last year’s marriage Bill is that it included a 12-month phase out of exceptions to the Commonwealth Sex Discrimination Act 1984 which allowed states and territories to enforce these discriminatory laws.
Which means that, from this Sunday, trans people who are already married in WA and Tasmania will be able to lodge a complaint with the Australian Human Rights Commission (AHRC) about their mistreatment under the Gender Reassignment Act 2000 (WA) and the Births, Deaths and Marriages Registration Act 1999 (Tas).
Presumably, they will also be able to seek a new birth certificate through this process (although whether the respective state Governments provide one remains to be seen).
Nevertheless, for as long as forced trans divorce sits on the statute books in any Australian jurisdiction, and we compel some trans people who are already married to take action with the AHRC – or even have to go to Federal Court – just to gain access to accurate identity documentation, it is inaccurate to say we have genuine marriage equality in Australia.
[Update May 2019: Western Australia abolished its forced trans divorce laws in February 2019, while Tasmania removed its own forced trans divorce provisions in April 2019, taking effect earlier this month. This means that – finally – forced trans divorce is history.]
Second, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 didn’t just allow LGBTI couples to wed – it also inserted new ‘religious exceptions’ into the Marriage Act 1961 itself. For example, it gave existing civil celebrants the ability to nominate themselves as ‘religious marriage celebrants’ and thereby refuse to perform the ceremonies of same-sex couples.
Importantly, this didn’t just apply to civil celebrants who were ‘ministers of religion’ of unrecognised religions (sub-section 39DD(1), which is at least arguably consistent with freedom of religion).
It also allowed existing civil celebrants to gain access to these special privileges based on nothing more than their personal beliefs. As is now set out in sub-section 39DD(2) of the Marriage Act 1961:
Marriage celebrants who wish to be religious marriage celebrants on the basis of their religious beliefs
(2) The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:
(a) the person was registered as a marriage celebrant under Subdivision C of this Division immediately before Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced; and
(b) the person gives the Registrar notice that the person wishes to be identified as a religious marriage celebrant on the register:
(i) in writing; and
(ii) in a form approved by the Registrar; and
(iii) within 90 days after Part 1 of Schedule 1 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commences; and
(c) the choice is based on the person’s religious beliefs [emphasis added].
In effect, a civil celebrant who was registered before 9 December 2017 could simply sign-up to be able to say ‘no gays allowed’ (or no lesbians, bisexuals or transgender people allowed either).[iii]
[Update 13 December 2018: In fact, as revealed by the Ruddock Religious Freedom Review Report, 406 existing civil celebrants registered to take advantage of these new special privileges to discriminate against LGBTI couples. Which, to be honest, is even more people choosing prejudice over equal love than I had anticipated.]
Remember that these celebrants are not ministers of religion, and the ceremonies they officiate need not be religious. There is also no test of their beliefs – it is based solely on self-declaration.
In practice, this provision has very little to do with actual religious freedom, but instead provides new legal protections to homophobia, biphobia and transphobia as long as it is dressed up as ‘religious’.
That much is made abundantly clear by the fact similar provisions had never been introduced to ‘protect’ civil celebrants who wanted to refuse to (re-)marry people who had previously been divorced, or to reject ceremonies for couples of different faiths – both of which arouse strong religious beliefs for many people.
These provisions were introduced only when LGBTI couples were finally allowed to marry, demonstrating that they are not aimed at protecting genuine religious freedom at all – their real target is undermining LGBTI equality.
This is obviously a terrible provision in and of itself. It also sets a negative precedent for other laws.
After all, if civil celebrants – who are in reality a small business, offering commercial services to the public at large – are allowed to discriminate against their customers on the basis of the customer’s sexual orientation or gender identity, then why shouldn’t other businesses be allowed to do the same (a point that religious fundamentalists made frequently during the Ruddock Religious Freedom Review).
Indeed, that brings me to the third reason why we still don’t have genuine marriage equality in Australia.
Amidst all of the celebrations of the passage of same-sex marriage (and yes, as someone engaged to be married, I still think some celebration was justified), I wonder how many people understand that the following is now written into the Marriage Act:
47B Bodies established for religious purposes may refuse to make facilities available or provide goods or services
(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:
(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
(2) Subsection (1) applies to facilities made available, and goods or services provided, whether for payment or not.
(3) This section does not limit the grounds on which a body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage.
(4) To avoid doubt, a reference to a body established for religious purposes has the same meaning in this section as it has in section 37 of the Sex Discrimination Act 1984.
(5) For the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage [emphasis in original].
This is an incredibly broad exception, applying to anything provided by a religious organisation that has anything to do with a LGBTI wedding – even where it is provided by a service that advertises to the public at large and is run for profit.
The most generous interpretation of the inclusion of this amendment is that it merely replicates, and reinforces, the existing religious exceptions found in section 37(1)(d) of the Sex Discrimination Act 1984 (provisions which have come under scrutiny this week because they also allow discrimination by religious schools against LGBT students and teachers).
But, if that is the case, their inclusion in the Marriage Act is entirely unnecessary. And for a reform that has powerful symbolic value, what does it say about the passage of same-sex marriage that it was accompanied by these equally symbolic, but discriminatory, amendments.
On the other hand, it is arguable that the addition of section 47B has actually increased the range of circumstances in which religious organisations can discriminate against people on the basis of their sexual orientation or gender identity.
This is particularly the case in relation to Tasmania, where the Anti-Discrimination Act 1998 remains the best practice LGBTI discrimination law in Australia.
This is because the religious exceptions in section 47B of the Marriage Act 1961 are framed in a positive way (‘a body established for religious purposes may refuse…’), whereas the existing Sex Discrimination Act 1984 exceptions are phrased in a negative way (‘Nothing in Division 1 or 2 affects…’).
This is an important distinction because it is more likely that a positively-framed religious exception will override the anti-discrimination laws of jurisdictions which are inconsistent. In practice, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 has likely allowed new forms of discrimination in our most Southern state.
Even if that interpretation is incorrect, it should again be highlighted that this type of exclusionary provision was never needed to allow religious organisations to refuse to serve couples where one or both had previously been divorced, or where the couple had different religious backgrounds.
Section 47B was only introduced when LGBTI couples were allowed to walk down the aisle. It’s true purpose is to allow religious bodies – even where they are advertise to the public at large and are run for a profit – to tell same-sex couples to go somewhere else.[iv]
Perhaps the most disappointing part about the Marriage Amendment (Definition and Religious Freedoms) Act 2017 is that, despite being one of the worst marriage amendment Bills ever introduced into Commonwealth Parliament,[v] it was signed-off on by Australian Marriage Equality (AME), and the Equality Campaign, supposedly on behalf of the LGBTI community.
In the days after the announcement of the postal survey results, they presented Senator Dean Smith’s Bill as a fait accompli, arguing for its passage without calling for the removal of its unnecessary provisions regarding existing civil celebrants or wedding-related services, effectively making them accomplices to this new discrimination.
In my opinion, AME/The Equality Campaign were wrong to do so.
They were wrong on principle. As an organisation purporting to advocate for marriage equality, they should have been calling for genuine equality, not defending the inclusion of provisions that were never needed for anyone else, but were only introduced to target LGBTI Australians. Their acquiescence makes it harder to push for the removal of these provisions in the future.
They were wrong on strategy. The religious fundamentalists inside the Coalition Government were the ones who had pushed for the unnecessary, wasteful, harmful and divisive postal survey – and they lost, with the majority of Australians showing they supported the equal treatment of all couples, irrespective of sexual orientation, gender identity or sex characteristics.
That is what the LGBTI community should have been demanding: full equality and nothing less. If the Coalition Government refused to pass it because it did not include new rights to discriminate against LGBTI couples, even after imposing an unprecedented $80.5 million three-month national opinion poll, then they would have experienced the biggest of backlashes. It was not up to the LGBTI community to save the Government from itself.
And they were wrong on process, because they never secured the informed consent of the LGBTI community to these changes. They never explained, in detail, what had been given up and why, and they never asked lesbian, gay, bisexual, transgender and intersex (LGBTI) people whether it was a price they were prepared to pay.
Indeed, when other organisations like just.equal and PFLAG Australia did ask the community what they thought, the response was generally unequivocal – there must be no new discrimination.[vi] In the absence of other evidence, that is the position I think AME/The Equality Campaign should have adopted.[vii]
It is likely I will be criticised, possibly quite strongly, for writing this (and especially those last few paras). Many will argue that what’s done is done, and should therefore be left alone.
Except I would argue that what was done last year – the inclusion of new discriminatory provisions in the Marriage Act itself – needs to be undone.
In order to do so, we need to know what exactly is in the Act, and how and why it was included. And then we need to work out a strategy for ensuring sections 39DD(2) and 47B are removed from the statute books so that the stain of discrimination is washed clean, permanently.
Because for as long as any LGBTI couple is turned away by a homophobic or transphobic civil celebrant (calling themselves a ‘religious marriage celebrant’), and for as long as religious organisations enjoy special privileges to discriminate in the provision of wedding-related goods, services or facilities, then we don’t enjoy genuine marriage equality in Australia.
The moment Commonwealth Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. It introduced same-sex marriage. But it isn’t marriage equality.
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[i] See the discussion of forced trans divorce below.
[ii] Legislation to abolish forced trans divorce – as well as making the inclusion of gender on birth certificates optional – has passed Tasmania’s Legislative Assembly, but it is unclear if or when it will pass the Legislative Council.
Legislation to abolish forced trans divorce passed Western Australia’s lower house in late 2018. It was finally passed by the Legislative Council on 12 February 2019, leaving Tasmania as the last state yet to abolish Forced Trans Divorce.
Religious marriage celebrants may refuse to solemnise marriages
(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part, if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage
Grounds for refusal not limited by this section
(2) This section does not limit the grounds on which a religious marriage celebrant may refuse to solemnise a marriage.
[iv] There is a fourth problem with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 and that is it reinforces the ability of defence force chaplains to discriminate in terms of which marriage ceremonies they will officiate. As outlined in section 81 of the Marriage Act 1961:
(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:
(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body of religious organisation;
(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;
(c) the chaplain’s religious beliefs do not allow the chaplain to solemnise the marriage.
Grounds for refusal not limited by this section
(3) This section does not limit the grounds on which an authorised celebrant (including a chaplain) may refuse to solemnise a marriage.
This provision is offensive because military chaplains are public servants, paid for by the taxpayer (including of course LGBTI taxpayers), and obligated to serve all of the people supposedly under their pastoral care. They should be required to provide these services to all ADF personnel, irrespective of their sexual orientation or gender identity – and if they cannot, they should find another job.
On the other hand, it should be acknowledged that defence force chaplains already had the ability to determine who they performed marriages for (although the revised section 81 made this power even clearer) meaning it is somewhat distinct from the existing civil celebrant, and wedding-related services, religious exceptions, both of which are genuinely new ‘rights’ to discriminate.
[v] Perhaps equal worst with Liberal Democrat Senator David Leyonhjelm’s Freedom to Marry Bill 2014, which allowed all civil celebrants to turn away LGBTI couples, but which did not insert new general religious exceptions in the Marriage Act itself.
Liberal Senator James Paterson’s Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 – written in conjunction with the Australian Christian Lobby – was obviously far worse than both, but it was never formally introduced.
[vi] See the results of their November 2017 community survey here.
63.1% of respondents opposed the Smith Bill’s civil celebrant provisions
86.9% opposed the wedding-related services exceptions, and
77.4% opposed provisions allowing military chaplains to refuse to officiate the ceremonies of LGBTI ADF personnel.
Importantly, 53.7% of respondents indicated they were willing to wait until marriage equality could be achieved without such provisions (while only 27.9% were not willing to wait and 18.4% were neutral on this issue).
Next Thursday, 15 November, is the one-year anniversary of the announcement of the results of the same-sex marriage postal survey, in which 61.6% of Australians said yes to equality.
And December 7 will mark 12 months since the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which finally legalised same-sex marriage in this country.
With both milestones rapidly approaching, it is likely we will witness a large number of Liberal Party MPs and Senators try to claim credit for achieving marriage equality.
Indeed, now-former Prime Minister Malcolm Turnbull kicked off this predictable right-wing festival of self-congratulation on Thursday night’s QandA,[i] commenting that:
“You know, think of the big social reforms, legalising same-sex marriage. I mean, what a gigantic reform that was, I was able to do that … I legislated it, right? So I delivered it.”
This statement is about as far removed from the truth as the nonsense that emanates daily from Donald Trump’s twitter account.
Rather than ‘delivering’ this important reform, the Liberal Party was in fact the greatest obstacle standing between LGBTI Australians and the right to marry.
In case you disagree – or have forgotten the destructive role played by the Liberals on this issue over many years – here’s a reminder of what they actually did:
The Liberal Party banned marriage equality in the first place
It was John Howard’s Liberal-National Government that prohibited same-sex marriage in August 2004.[ii] While this was prompted by couples who had wed overseas seeking recognition of their marriages under Australian law, it was primarily motivated by the desire to wedge the Labor Party on this issue ahead of the federal election later that year. Sadly it would not be the last time the Liberal Party played with the lives of LGBTI people for base political reasons.
The Liberal Party refused to allow Australians to marry overseas
The Howard Liberal-National Government actually went further than merely refusing to recognise the marriages of couples who had wed overseas. They then refused to issue Certificates of No Impediment to Australians who wanted to get married in countries where it was legal, even where one member of the couple was from the other, more-progressive country. This was an incredibly petty and mean-spirited move.
Fun Fact: The Attorney-General who implemented this pathetic policy was the same person who led the recent Religious Freedom Review which recommended that religious schools continue to be allowed to discriminate against LGBT students and staff, one Philip Ruddock.
The Liberal Party voted against marriage equality in September 2012
It took eight years before there was a genuine opportunity to repeal the Howard Liberal-National Government’s ban on same-sex marriage. In late 2012, Parliament voted on ALP MP Stephen Jones’ private members’ bill.
In line with the hard-fought, and hard-won, decision at its December 2011 National Conference, the Gillard Labor Government gave its members a conscience vote. The majority of ALP MPs and Senators voted in favour of marriage equality.[iii]
On the other hand, every single Liberal Party MP and Senator, bar one, voted against same-sex marriage. That includes then-Opposition Leader Tony Abbott, Malcolm Turnbull, Scott Morrison, George Brandis and Dean Smith. The only notable, and noble, exception was Queensland Senator Sue Boyce.
The Liberal Party cannot expect to be rewarded for the fact that same-sex marriage was legalised on December 2017 when they were the ones who stopped it from being passed more than five years earlier.
The Liberal Party refused to hold a parliamentary vote on marriage equality
Following its election in September 2013, Tony Abbott’s Liberal-National Government simply refused to hold another ordinary parliamentary vote on same-sex marriage. This recalcitrant approach continued even after it became apparent the majority of MPs and Senators now supported marriage equality.
The Liberal Party challenged the ACT’s same-sex marriage laws
While the Abbott Liberal-National Government did absolutely nothing to achieve marriage equality in Commonwealth Parliament, they did take action in at least one area: they challenged the validity of the recently-passed ACT Government’s same-sex marriage laws in the High Court.
In fact, this was one of the first things the newly-elected government did on any issue, full stop, revealing its fundamental priority was to stop marriage equality in any way possible.
This challenge was ultimately successful, meaning that the marriages of 31 couples were effectively annulled.
Fun Fact: The Attorney-General who instigated this High Court challenge, that overturned the marriages of 62 people who his own Government would not allow to marry because of their sexual orientation and/or gender identity, would later claim that marriage equality was one of his, and his Government’s, greatest achievements, one George Brandis.
The Liberal Party proposed an unnecessary, wasteful, harmful and divisive plebiscite
In August 2015, with public support for marriage equality continuing to build, and the Abbott Liberal-National Government under mounting pressure to finally do something on this topic, they chose not to do the one thing that would actually resolve it (hold a parliamentary vote).
Instead, after a six-hour joint party-room meeting, they proposed a same-sex marriage plebiscite. Despite changing leaders the following month, new-Prime Minister Malcolm Turnbull continued to support this policy, including in the lead-up to the 2016 Federal election and beyond.
A plebiscite like this was essentially unprecedented – there had been only one plebiscite in the previous 98 years, and that was on the national anthem. It was unnecessary, and – at an estimated cost of $158.4 million – it was fundamentally wasteful too. LGBTI Australians also justifiably feared that, subjecting our relationships and rights to months of public debate would be incredibly divisive, and cause significant harm to the most vulnerable members of our community.
It should be remembered that the idea for a plebiscite was only being pushed by those who opposed marriage equality, including Abbott himself, the Australian Christian Lobby and other religious extremists. It was never designed with the best interests of the LGBTI community in mind.
The Liberal Party held an unnecessary, wasteful, harmful and divisive postal survey
After months of intense lobbying by LGBTI community advocates and organisations, the ALP, Greens and members of the cross-bench rejected the Turnbull Liberal-National Government’s plebiscite in the Senate in October 2016.
Despite this, Prime Minister Turnbull and the Coalition still refused to hold a straight-forward parliamentary vote. Instead, in August 2017 they proposed a same-sex marriage ‘postal survey’.
This was even more unprecedented, and was an abuse of the power of the Australian Bureau of Statistics’ power to collect, well, statistics. Despite the fact the High Court found it was technically lawful, it could at best be described as ethically dodgy, and at worst a perversion of Australian democracy.
Like the plebiscite, the postal survey was entirely unnecessary, and completely wasteful, ultimately costing taxpayers $80.5 million. And for LGBTI Australians and rainbow families its impact was exactly as bad as anticipated, unleashing a torrent of homophobia and transphobia, with the worst attacks of the bigoted No campaign reserved for trans and gender diverse young people.
Of course, the architects of the postal survey didn’t care about this negative outcome. Because the postal survey was never about us. It was put forward as a quick political fix for the Liberal Party, who knew they couldn’t continue to oppose marriage equality in the lead-up to the 2019 Federal election, but whose homophobic party-room members refused to hold a parliamentary vote without conducting a costly (in multiple senses of the word) public debate beforehand.
And if you disagree with this analysis, perhaps you’ve forgotten whose idea the postal survey was, one Peter Dutton.
The Liberal Party didn’t actually pass marriage equality
This point might sound strange (especially to new readers of this blog), but it is an important one to make. Because while Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 finally granted same-sex and gender diverse[iv] couples the right to marry, it did not deliver true equality.
A hint lies in the title. This legislation did not just amend the Marriage Act 1961 to ensure marriage was available to all couples, it also added new rights for individuals and organisations to discriminate against LGBTI couples on the basis of religious prejudice.
This included permitting existing civil celebrants to register as ‘religious marriage celebrants’ and consequently putting up signs saying ‘no gays allowed’. These are not ministers of religion, and the ceremonies they conduct are not religious. But the law, as passed, allows these individuals to discriminate on the basis of their homophobia and transphobia.
Smith’s Marriage Amendment (Definition and Religious Freedoms) Act also introduced offensive provisions allowing discrimination by religious organisations in the Marriage Act itself. This includes section 47B:
A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:
(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
Similar provisions allowing discrimination by religious organisations already existed in the Commonwealth Sex Discrimination Act 1984, so at best they were unnecessary here. At worst, because this amendment was phrased as a ‘positive right’, this allows new discrimination, in particular because it is more likely to overrule the better anti-discrimination laws of some states and territories (especially Tasmania’s Anti-Discrimination Act 1998).
It should be noted that these discriminatory provisions were not previously required with respect to divorced people remarrying – another issue on which there are strong religious beliefs. The fact they were introduced last year reveals they were motivated not by so-called ‘religious freedom’, but by homophobia and transphobia masked in that language.
By introducing new forms of discrimination, Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 delivered same-sex marriage, but it most definitely did not achieve marriage equality.[v]
The majority of Liberal Party MPs and Senators voted for even more discrimination
Despite the fact the Smith Bill did not deliver equality to begin with, the majority of Liberal Party MPs and Senators voted in favour of at least some (and in some cases all) of the amendments that would have allowed even more discrimination against LGBTI couples.[vi] The only reason these were defeated was because all ALP and Greens MPs and Senators opposed them, alongside a small minority of Coalition parliamentarians.
These (thankfully rejected) amendments included granting individuals the right to discriminate in the provision of goods and services on the basis of their ‘religious marriage beliefs’, as well as personal views that same-sex relationships are wrong, or that trans people don’t exist.
The then-Attorney-General, George Brandis, even tried to incorporate Article 18 of the International Covenant of Civil and Political Rights into the Marriage Act 1961 (through an amendment that ‘Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching’) while conveniently ignoring the limitation in Article 18(3): that religious freedom can be limited to protect the fundamental rights and freedoms of others (including the right to non-discrimination). Oh, and he moved an amendment that all civil celebrants should be able to discriminate against LGBTI couples because of their personal religious or conscientious beliefs.
It is offensive for Liberals to now claim credit for delivering marriage equality when the majority of them voted for it not to be equal.
Fun Fact: Our new Prime Minister, Scott Morrison, voted for every amendment in the House of Representatives that sought to increase discrimination against LGBTI couples. This included supporting having two different definitions of marriage (one for ‘traditional marriage’ – the union of a man and a woman to the exclusion of all others, voluntarily entered into for life – and one for everybody else – the union of 2 people to the exclusion of all others, voluntarily entered into for life). He also introduced his own amendments to the Bill, which included protecting individuals who discriminate against others because of transphobic beliefs that ‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth’. He might now be Leader of the country, but with views like that he’ll never be a true leader.
Even after the postal survey, a significant minority of Liberal Party MPs and Senators voted against same-sex marriage
The Liberal Party banned marriage equality in 2004. They voted against it in September 2012. They refused to hold a simple parliamentary vote following their election in 2013. They tried and failed to hold a plebiscite in 2016. They ‘succeeded’ in holding a postal survey in 2017, in which more than three-in-five Australians said yes to equality.
After forcing us wait for 13 years, and making us jump through hoops that no other group in Australia has ever had to before (and hopefully none will have to again), a significant minority of Liberal MPs and Senators still couldn’t bring themselves to vote for the ability of all couples to marry, irrespective of sexual orientation or gender identity.
In the Senate, Liberals Concetta Fierravanti-Wells, Eric Abetz and Slade Brockman, and Nationals John Williams, Matt Canavan and Barry O’Sullivan, voted no. While Liberal Senators Michaelia Cash, David Fawcett, James McGrath and Zed Seselja, and National Bridget McKenzie, all abstained.
In the House of Representatives, Liberal Russell Broadbent, and Nationals Keith Pitt and David Littleproud, voted no. Whereas Liberals (ex-PM) Tony Abbott, Andrew Hastie, Michael Sukkar, Kevin Andrews, (now-PM) Scott Morrison, Rick Wilson, Stuart Robert and Bert van Manen, and Nationals Barnaby Joyce and George Christensen, all abstained.
After subjecting LGBTI Australians to an unnecessary, wasteful, divisive and harmful postal survey because of their own internal political divisions, the fact that these 24 Liberal and National MPs could not even respect its outcome by voting yes in parliament shows the absolute contempt that they hold for us and our relationships. Their disgusting behaviour should not be forgiven nor forgotten.
These ten points unequivocally demonstrate that same-sex marriage was achieved in Australia in spite of the Liberal Party, not because of them.
So, in the coming weeks, if any Liberal MP or Senator tries to claim credit for achieving marriage equality, tell them to get in the bin.
Because that is where such garbage claims belong.
Former Prime Minister Turnbull on QandA, where he tried to claim credit for marriage equality. Hey Malcolm, Get in the Bin.
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[i] Not that I was watching: I was not interested in hearing from the fakest of fake (self-declared) friends of the LGBTI community. This quote is from a transcript in CrikeyWorm.
[ii] Yes, this was done with the support of the then-Latham (!) Opposition, a move that also warrants criticism – but Labor will not be the ones falsely claiming credit for marriage equality in the coming weeks.
[iii] Of course, then-Prime Minister Julia Gillard voted against equality, something for which she should be forever condemned.
[iv] Although trans and gender diverse people are still waiting for forced trans divorce laws to be repealed in some jurisdictions (noting that if they are not repealed by 9 December 2018 the Commonwealth Sex Discrimination Act 1984 will overrule them).
[v] There is a second, more technical, argument why the Liberal Party didn’t actually pass marriage equality. That is because the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was a private members’ bill. It was not Government legislation, so its passage cannot be claimed as an achievement of the Liberal-National Government. Indeed, as a private members’ bill, more ALP MPs and Senators voted for it than Liberal and National ones.
[vi] This includes then-Prime Minister Malcolm Turnbull, who voted for three different sets of amendments increasing discrimination against LGBTI couples, while abstaining on the others.
The Commonwealth Attorney-General’s Department is currently consulting about the Notice of Intended Marriage form. Submissions close today, 28 October 2018 (for more information, click here). Here’s mine:
Thank you for the opportunity to provide a submission to this consultation.
My comments relate to only one section of the revised Notice of Intended Marriage form, and that is:
Gender (optional) Male, Female or Non-Binary.
This is required to be completed for both parties to an intended marriage.
The inclusion of this question is entirely unnecessary and it should be removed.
It is unnecessary because, following the Marriage Amendment (Definition and Religious Freedoms) Act 2017, there is generally no gender (or sex) based restriction on whether couples are able to lawfully marry.
This status will be reinforced on December 9 this year when, for those states and territories that have yet to abolish forced trans divorce, the exception provided by the Commonwealth Sex Discrimination Act 1984 to permit this unjustifiable discrimination will expire.
This question is also unnecessary to establish identity, which is proved by name, date and place of birth and the requirement to supply identity documentation on the subsequent page of the form. Logically, it is clearly unnecessary to prove identity it if answering is optional.
It should be removed because of the growing recognition of, and respect for, the full diversity of the Australian community, particularly in terms of sex, sex characteristics and gender identity.
As a cisgender gay man and LGBTI advocate I acknowledge the advice of trans, gender diverse and intersex individuals and organisations that, in order to be fully inclusive of their diversity, requests for information about sex and/or gender should only be included if they can be shown to serve a valid purpose.[i]
I can see no such purpose in this instance.
Recommendation 1: Question 3 of the Notice of Intended Marriage form should be removed.
If the above recommendation is not agreed, then it is my strong view this question should remain optional.
Further, given the question serves no valid purpose (in terms of determining whether a person is eligible to marry, or in verifying their legal identity) I suggest that the current three options of Male, Female and Non-Binary be removed. Instead it should simply state:
Gender (optional), please specify
This should be a write-in box, and have no other prompts for information. Amending the question in this way would allow people to enter their own gender identity, including those who may not identify with any of Male, Female, or Non-Binary.
Recommendation 2: If question 3 is retained, it must continue to be optional, and should ask for Gender, please specify, followed by a write-in box.
With the passage of last year’s amendments to the Marriage Act 1961, and the imminent abolition of forced trans divorce, marriage in Australia will shortly be available to all couples, irrespective of sex, sex characteristics, sexual orientation and gender identity.
That is what 61.6% of Australians said yes to (in the Liberal-National Government’s unnecessary, wasteful, divisive and harmful postal survey).
This equality-of-access should be reflected in the Notice of Intended Marriage form, by removing the optional question that asks for the gender of the participants, because it is no longer relevant in 2018.
Please do not hesitate to contact me at the details provided should you require additional information.
[i] See for example article 8 of the 2017 Darlington Statement of intersex advocates from Australia and Aoteoroa/New Zealand, which includes:
“Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications, but to end legal classification systems and the hierarchies that lie behind them. Therefore:
a) As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody” (emphasis in original).
It is now 18 months since the passage of legislation that finally allowed lesbian, gay, bisexual, transgender and intersex people the right to marry under Australian law.
Well, most LGBTI people. Because it did not immediately overrule the laws of some Australian states and territories that prevent people who are married from changing their identity documentation to reflect their gender identity. In effect, making some trans and gender diverse people choose between the recognition of their relationship, and recognition of who they are.
Instead, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 gave states and territories 12 months in which to update relevant legislation to provide married people with the same opportunity to update their birth certificates as unmarried people.
At the end of this 12-month period, on 9 December 2018, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 was repealed:
Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.
So how did the states and territories respond?
First, there are two jurisdictions that had already abolished forced trans divorce prior to the passage of the Marriage Amendment (Definition and Religious Freedoms) Act:
The Australian Capital Territory, where section 24(1) of the Births, Deaths and Marriages Registration Act 1997 does not make any distinction on the basis of whether a person is married or unmarried, and
South Australia, where sub-section 29I(3) of the Births, Deaths and Marriages Registration Act 1996 explicitly states that an application to change sex or gender identity ‘may be made under this section even if the person is married.’
There are four other jurisdictions that passed legislation within the 12 month time-frame granted to repeal forced trans divorce:
Victoria, where Parliament approved the Justice Legislation Amendment (Access to Justice) Act 2018 on 22 May. Among other things, this law repealed the requirement in section 30A of the Births, Deaths and Marriages Registration Act 1996 that a person be unmarried in order to apply to alter their details on the register, and
New South Wales, which passed the Miscellaneous Amendment (Marriages) Act 2018 in June. Similar to the Victorian Act, this legislation removes the requirement in sub-section 32B(1)(c) of the Births, Deaths and Marriages Registration Act 1995 that a person be unmarried in order to apply to alter the register to record change of sex.
Queensland, which also passed its Births, Deaths and Marriages Registration Amendment Act 2018 in June, amending the requirement in section 22 of the original Act that a person be unmarried for their sexual reassignment to be noted on the Register, and
The Northern Territory, which passed the Births, Deaths and Marriages Registration and Other Legislation Amendment Act 2018 in late November, taking effect on 6 December with only three days to spare.
Which means that, at the time of the December 2018 deadline, two out of eight Australian states and territories had failed to repeal forced trans divorce:
Western Australia, where the Gender Reassignment Amendment Bill 2018 passed the Legislative Assembly in November 2018, but was not passed by the Legislative Council before the end of 2018. Update: The Legislative Council passed the Bill on Tuesday 12 February 2019, and
Tasmania, where the Justice and Related Legislation (Marriage Amendments) Bill 2018 – which makes a range of important amendments beyond simply repealing forced trans divorce – passed the Legislative Assembly in November 2018 despite Government opposition, and awaits consideration by their Legislative Council in March this year. Update: This Bill was passed by the Legislative Council in April 2019, and took effect in May 2019.
Of course, it is disappointing that it took another 17 months for trans and gender diverse Australians to gain access to marriage on the same terms of lesbian, gay and bisexual people.
But it is still worthy of celebration that the abhorrent legal discrimination that was forced trans divorce has finally been made history.
Finally, this doesn’t mean the struggle for LGBTI equality in Australia is over – there is plenty left to do as part of the LGBTI agenda (see here).
* This article was originally published in June 2018 as ‘Ending Forced Trans Divorce: Mission Half Accomplished’.
It has truly been an amazing few days. With the House of Representatives vote on the Smith Bill on Thursday afternoon, its royal assent on Friday morning, and commencement at 12am Saturday (instantly recognising the overseas marriages of many LGBTI couples, and allowing thousands more to register their intention to marry), Australia is a different country – a better, fairer and more inclusive country – today than it was this time last week.
Now that I’ve had a few days to let this historic achievement sink in, here are some personal reflections on the marriage debate:
It’s LGBTI marriage. It’s not marriage equality.
My first reflection is probably the most controversial: while the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which permits all couples to marry irrespective of their sexual orientation, gender identity or sex characteristics, is obviously welcome, it does not deserve the moniker ‘marriage equality’.
That is because, as well as amending its definition, it also changes the ‘terms and conditions’ surrounding marriage in Australia, simply because LGBTI couples are finally allowed to participate.
This includes enabling existing civil celebrants to nominate to become ‘religious marriage celebrants’, and discriminate against LGBTI couples, solely on the basis of their personal religious beliefs [sub-section 39DD(2)]. As well as unnecessarily duplicating religious exceptions from the Sex Discrimination Act1984 within the Marriage Act itself [section 47B].
The fact these amendments have been included now, but were not previously required in relation to divorced people re-marrying, suggests they have very little to do with ‘religious freedom’, and much more to do with homophobia, biphobia and transphobia.
Informed by past experience, the majority of LGBTI Australians fear that new rights to discriminate will be primarily used to target us – with recent research finding more than 60% of respondents strongly agreeing that, even if these laws technically allow discrimination against all couples, ‘it will disproportionately discriminate against same-sex couples’.
Of course, in the interests of ensuring LGBTI couples are able to marry at all, many people were prepared to accept these concessions. I certainly understand that viewpoint. But from my perspective, it means we now enjoy LGBTI marriage (or what a respected friend of mine describes as ‘partial marriage equality’) rather than genuine marriage equality.
And I think it is important to remind ourselves of this compromise, so that we can work to remove these discriminatory provisions in coming years.
It could have been worse
Despite the significant flaws of the Smith Bill, we should also remember that it could have been much worse. At the start of November, most media commentary focused on how many ‘conservative’ amendments would be passed, allowing even more discrimination against LGBTI couples.
There was even the short-lived Bill from Liberal Senator James Paterson, the entire purpose of which appeared to be about entrenching ‘religious privilege’. Followed by amendments put forward by Attorney-General George Brandis, and supported by Prime Minister Malcolm Turnbull, to permit all civil celebrants to say ‘no gays allowed’.
One of the proudest moments of my own participation in the long fight for equality came in recent months, collaborating with a small group of advocates to oppose these changes. Rodney Croome, Felicity Marlowe, Shelley Argent, Brian Greig, Sharon Dane, Ivan Hinton-Teoh, Sharyn Faulkner, Robin Banks and Peter Furness all fought for the principle of full equality until the very end.
In that struggle we were not alone, with others – notably including the Equal Marriage Rights Australia Facebook page, Pauline Pantsdown, Jacqui Tomlins and Doug Pollard –making important public contributions.
I should also take this opportunity to thank everyone – family members, friends, blog readers, No Homophobia No Exceptions followers, and complete strangers – who completed the just.equal webform, to let MPs and Senators know there should be ‘No compromise on equality’. I understand close to 200,000 emails were sent, obviously having a massive impact. Thank you.
Together, we were able to alter the conversation, so that the Smith Bill was no longer seen as a ‘starting point’, to inevitably be dragged further to the right, but as the compromise it clearly was.
Together, we were able to persuade the Greens to introduce amendments to remove the egregious elements of the Smith Bill, amendments that, even if they failed last week, can be used for advocacy in the future.
Together, we helped to stop the Marriage Amendment (Definition and Religious Freedoms) Act 2017 from being much, much worse.
It could still get worse
We must not overlook the fact that the reforms introduced last week are already under serious threat, as a result of the Review into ‘Religious Freedoms’ announced by Malcolm Turnbull on 22 November.
Former Liberal MP Philip Ruddock – the Attorney-General who oversaw the introduction of the ban on marriage equality in August 2004 – will spend the first three months of 2018 examining how Australian law can ‘better protect’ religious freedoms.
As we all know, increases in special privileges for religious individuals and organisations almost inevitably come at the expense of the rights of lesbian, gay, bisexual, transgender and intersex Australians (as well as other groups, including women).
Despite this, the panel for the Ruddock Review does not include any representatives from the LGBTI community (with Ruddock joined by the head of the Australian Human Rights Commission Rosalind Croucher, retired judge Annabelle Bennett and Jesuit priest Frank Brennan).
So, by all means spend the remainder of December celebrating our recent success. Because when 2018 starts we must stand ready to defend those gains, as well as protecting a wide range of other existing LGBTI rights, which will likely come under sustained attack.
Renewed appreciation of the importance of LGBTI anti-discrimination laws
Some of the rights most at risk in the Ruddock Review – as they were during the parliamentary debate of the Marriage Amendment (Definition and Religious Freedoms) Bill – are our essential LGBTI anti-discrimination protections.
Indeed, one of the few positives of the past few months, amid the intense lobbying surrounding the Smith Bill, Paterson Bill and attempted conservative amendments, has been renewed appreciation of the importance of these laws within the LGBTI community itself.
After all, it is difficult to convey the significance of provisions, like LGBTI anti-discrimination sections within the Sex Discrimination Act, that should be needed less and less in practice as homophobia recedes (although the experience of the postal survey indicates that hopeful vision of the future remains some way off).
However, even if we don’t individually use them to lodge complaints, we all rely on the standards these laws set. Hopefully, the recent focus on the subject of anti-discrimination laws means the LGBTI community will be ready to fiercely defend our existing protections in the near future.
But we must do more than merely maintain the status quo. We must campaign to improve the protections offered by these laws, especially in terms of who is covered, removing religious exceptions, and introducing LGBTI anti-vilification laws where there currently are none (Commonwealth, Victoria, Western Australia, South Australia and the Northern Territory).
The first opportunity to improve these laws is the public consultation by the Northern Territory Government on modernisation of their Anti-Discrimination Act. Submissions close 31 January 2018. For more information, click here.
Marriage is not, and never has been, the only LGBTI issue
This point may seem obvious to most (but sadly not all) people within the LGBTI community, but it is less so to those outside, including some who sit in our nation’s parliament.
The denial of the right to marry was never the only form of discrimination to adversely affect lesbian, gay, bisexual, transgender and intersex Australians. For a lot of people, it wasn’t even close to being near the top of a long list of concerns.
Now that LGBTI marriage has been legalised, it is time to ensure a wide range of other issues receive the level of attention that they deserve, including (but definitely not limited to):
Ending involuntary surgeries on intersex children
Improving access to identity documentation for trans and gender diverse people
Ensuring the national Health & Physical Education curriculum includes LGBTI students, and content that is relevant to their needs
Implementing nation-wide LGBTI anti-bullying programs in schools
Stopping the offshore detention, processing and resettlement of people seeking asylum, including of LGBTI people in countries that criminalise them (such as Papua New Guinea), and
These last two issues directly affect the LGBTI community, albeit not exclusively. There are other issues that may not be specifically ‘LGBTI’ per se, but that we have an interest in, and a responsibility to help address.
That includes improving the treatment of people seeking asylum generally, supporting the campaign for constitutional reform for Aboriginal and Torres Strait Islander people – especially because the same-sex marriage postal survey was used to push the Uluru Statement from the Heart off the political agenda – and helping to Close the Gap. Oh, and addressing climate change (including stopping the Adani coal mine) because there’s no human rights on a dead planet.
The ends do not justify the means
One of the most nauseating parts of the parliamentary debate last week (amid some fairly stiff competition) was the sight of Liberal and National Party MPs trying to retrospectively justify their decision to hold the postal survey in the first place.
They must never be allowed to get away with this argument.
And it was harmful, just as LGBTI Australians always said it would be: “experiences of verbal and physical assaults more than doubled in the three months following the announcement of the postal survey compared with the prior six months”, while “more than 90% reported the postal survey had a negative impact on them to some degree.”
Even the United Nations Human Rights Committee recently criticized the Government for this process:
“While noting that the State party is currently undertaking a voluntary, non-binding postal survey on the legalization of same-sex marriage, the Committee is of the view that resort to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method and that such an approach risks further marginalizing and stigmatizing members of minority groups.”
Which is exactly what happened.
The fact Commonwealth Parliament has since passed LGBTI marriage cannot be used to excuse the postal survey – because passing legislation is what parliaments are supposed to do. You know, like how John Howard banned marriage equality in August 2004, without an $80.5 million farce beforehand.
The postal survey should never have happened. And it must never be allowed to happen again.
This was not Malcolm Turnbull’s victory. It was ours.
Another extremely nauseating moment last week was watching Prime Minister Malcolm Turnbull try to claim credit for the passage of LGBTI marriage.
This is a so-called ‘leader’ who:
Refused to introduce legislation to legalise marriage equality
Instead, imposed an unnecessary, wasteful and harmful postal survey on the LGBTI community
Then refused to participate in the Yes campaign, and
When legislation was finally before parliament, supported amendments to allow even more discrimination against LGBTI couples.
Malcolm Turnbull does not deserve credit for what he did. He deserves our condemnation.
On the other hand, and given the sheer scale of the accomplishment, there are plenty of individuals and organisations that do deserve our thanks. Including the advocates I named earlier. As well as, obviously, the Yes Campaign and Australian Marriage Equality, GetUp!, PFLAG Australia, Rainbow Families Victoria, the NSW Gay & Lesbian Rights Lobby, just.equal, Equal Love, CAAH, Rainbow Labor and the unions (well, most of them), and the Greens. Plus many, many more.
Nevertheless, one of the best parts about the long struggle for LGBTI marriage in Australia is that it was truly a collective effort, much bigger than any one individual. Because it involved millions of actions, by millions of people, the vast majority of which will never be recorded by history. Which means the victory belongs to everyone who has contributed to the fight along the way. All of us.
So, there you have it, my final thoughts on the marriage debate. Feel free to share yours – including where you may passionately disagree – in the comments below.
But now, on a personal level, it’s time for me to stop writing about the right to get married. And to instead go and exercise that right, by planning Steven and my long overdue wedding.
The moment LGBTI marriage was passed by the House of Representatives.
This time last year, there was an emerging scandal for the Turnbull Government – the automated letters being sent to hundreds of thousands of people who had received social security seeking repayment of supposed debts worth tens of thousands of dollars.
Based on incomplete and often inconsistent information, a significant proportion of these notices were inaccurate, with many recipients owing nothing at all.
The ‘robo-debt’ letter program was nothing short of an omnishambles. Unfortunately, despite scathing assessments by both the Commonwealth Ombudsman and a Senate Inquiry, this scheme continues to this day.
Instead of targeting many of the most vulnerable members of the community, for debts they either don’t owe or can’t pay, there is one robo-debt letter that I think should be sent.
To a group of people that have cost Australian taxpayers a large amount of money, by failing to perform their most basic duties, and who definitely have the capacity to pay.
Dear Liberal and National Senators and Members of Parliament,
We are writing to seek repayment of a significant sum you owe to the people of Australia. This debt has been incurred due to your failure to fulfil the minimum responsibilities of your employment.
In August 2017, instead of voting on legislation in Parliament – which is, after all, what you are elected to do – you decided to outsource your obligations to the general public, by holding a postal survey about same-sex marriage.
Your postal survey was unnecessary. Unlike Ireland, there was absolutely no requirement for this process, which could at best be described as a voluntary, non-binding, national opinion poll.
Your postal survey was harmful. Exactly as the LGBTI community had told you it would be: “experiences of verbal and physical assaults more than doubled in the three months following the announcement of the postal survey compared with the prior six months”, while “more than 90% reported the postal vote had a negative impact on them to some degree.”
Your postal survey was unprecedented. Never before has an optional survey, run by the Australian Bureau of Statistics, been used to cast judgement on the fundamental human rights of a minority group. It must never be used again.
Your postal survey was wasteful. Originally budgeted at $122 million, it apparently came in under budget – at just $80.5 million*. This is money that could have been spent on health. Or education. Or any number of government programs that actually benefit the Australian community.
The historic events of the past fortnight have merely confirmed this monumental waste. LGBTI marriage has finally been passed in both houses of Parliament – the places where this important change should have been made all along.
Indeed, Commonwealth Parliament is the only place where it could ever have been achieved.
You are one of 105 Coalition Members of Parliament elected at the 2016 federal election. Your personal share of responsibility for this debt, of $100 million, has been allocated equally.
Your estimated debt is $766,666.67. We seek your repayment within 30 days of receipt of this letter.
Responsibility for seats currently unoccupied due to dual citizenship-related ineligibility – Liberal Senator Stephen Parry, Nationals Senator Fiona Nash and Liberal MP John Alexander – will fall on their respective political parties.
We understand a small number of you have consistently opposed your Government’s proposals to hold a plebiscite and then, when that legislation was rejected by the Senate, to conduct a postal survey instead. We thank you for your principled position.
If you fall into this category, please supply evidence of your denunciation of these policies, following its announcement by Prime Minister Tony Abbott in August 2015, and during the plebiscite debate in the second half of 2016 and the postal survey debate in August 2017, both under Prime Minister Malcolm Turnbull.
Once this evidence is received, you share of responsibility will also be allocated to your party’s head office.
It is possible some of you will feel aggrieved to receive this letter. If that is the case, please feel free to lodge a formal letter of complaint.
However, you should be aware we will give it the same level of consideration that you gave to the legitimate concerns expressed by the LGBTI community ahead of your decision to hold the postal ballot.
You should also consider yourselves lucky.
Lucky you are not having your wages deducted for all the years in parliament during which you failed to pass this most straight-forward of reforms (for some of you, stretching all the way back to the Howard Government’s original ban on marriage equality in 2004).
Lucky you are not being charged for all the time and expense wasted by LGBTI Australians, and our families, friends and allies, in having to fight for equal rights during your unjust, and unjustifiable, postal survey.
Lucky you will not have to pay damages for the emotional, mental and social harms you have caused by shirking your essential responsibilities and undertaking a bitter and divisive ‘vote’.
The LGBTI community was not so lucky. We were forced to wait more than 13 years for the equal recognition of our relationships. And then jump through hoops no-one else has ever been expected to negotiate.
We paid the price for your lack of leadership. Now it’s time for you to pay up.
Lesbian, gay, bisexual, transgender and intersex Australians, our families, friends and allies
*NB An earlier version of this article used the figure $100 million as the estimate announced by the ABS on the day the postal survey results were announced. On 8 December, Finance Minister Senator Mathias Cormann revealed the final cost to the Government was $80.5 million.
Just when you thought Prime Minister Malcolm Turnbull couldn’t physically be any more disappointing on marriage equality than he already is, he goes and announces his support for adding new forms of discrimination to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (aka the Smith Bill).
That’s right, less than 24 hours after yesterday’s emotional celebrations when that Bill cleared the Senate – something which Turnbull himself tweeted showed ‘Parliament at its best today – the Senate passed the same-sex marriage bill’ – he has revealed he will support multiple negative amendments in the House of Representatives, including some that were explicitly rejected in the upper house.
This significantly increases the chances that the legislation that is ultimately adopted falls well short of genuine marriage equality, even risking the passage of the Bill entirely if we end up with deadlock between the two chambers.
It is unclear whether Turnbull actually believes in the amendments himself, or if he is simply supporting them in a(nother) craven capitulation to capital ‘c’ Conservatives within his party, in a last-ditch effort to save his leadership.
Frankly, my dear readers, I don’t give a damn what his motivation is. Because, far more importantly, it is clear what the impact will be: more discrimination against LGBTI couples, and LGBTI Australians more broadly.
Let’s turn to the possible amendments themselves. Based on media reports in The Australian, and Guardian Australia, it appears Turnbull now supports at least two, probably three, and potentially even more amendments undermining the Smith Bill, which as we already know is a significant compromise. These include:
Providing all civil celebrants with an ability to discriminate on the basis of their personal conscientious or religious belief
As reported by The Australian, “[t]he Prime Minister supports… provisions that would ensure that marriage celebrants are able to decline to solemnise marriages which they do not wish to solemnise.” Presumably, this means supporting Attorney-General George Brandis’ amendments on this topic.
Civil wedding ceremonies are not religious, therefore a celebrant’s personal beliefs are irrelevant
The ability to discriminate does not currently exist with regards to divorcees remarrying, so should not be introduced for LGBTI couples
Civil celebrants are performing a duty on behalf of the state, so should not have the power to discriminate on the basis of sexual orientation, gender identity or intersex status
Commercial businesses should not be able to discriminate on the basis of personal religious or conscientious belief
If civil celebrants are allowed to discriminate, it is difficult to withhold this privilege from other wedding-related businesses, and
Allowing civil celebrants to discriminate creates a terrible precedent for anti-discrimination law in Australia, opening the door to further discrimination in the future.
Reinforcing the ability of charities to discriminate against LGBTI people
These amendments are being sold as a supposed ‘shield’ to protect charities from some unspecified, nefarious action by future governments. In reality, they are more likely to be used as weapons against lesbian, gay, bisexual, transgender and intersex Australians, further entrenching the ability of religious organisations to discriminate against employees, and people accessing their services.
Irrespective of which view you adopt, however, the amendments are completely unnecessary. As revealed by Liberal Senator Dean Smith during Senate debate of his Bill on Tuesday, he wrote to both the Australian Commissioner of Taxation, and the Acting Australian Charities and Not-for-Profits Commissioner, about the impact of his proposed legislation. From Hansard:
“I asked the charities commissioner two questions. The first was whether a religious charity that currently holds and/or expresses a view of or a position on marriage will be able to continue to do so without any negative impacts on its charitable status following the enactment of amendments to the Marriage Act to allow same-sex couples to marry – that is, the future act. ‘The short answer’, the commissioner said to me, ‘to this question is yes’.
“The second question I asked the charities commissioner was whether the lawful refusal to conduct a marriage ceremony, deliver goods or services, or hire facilities to same-sex couples or other couples in accordance with the future Marriage Act and current exemptions in federal, state and territory anti-discrimination laws would result in any adverse consequences in relation to an entity’s charitable status. ‘The short answer’, he says in correspondence to me, ‘is no’.
“For the sake of completeness, the Australian Taxation Commissioner says:
… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on [Deductible Gift Recipient] endorsement.
He goes on to say:
Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.”
Turnbull’s own Government agencies – including the Taxation Commissioner himself – have effectively rejected any need for amendments in this area. He should not be jeopardising the introduction of marriage equality for the sake of something that is, at best, unnecessary, and at worst, a Trojan horse for increased discrimination against LGBTI people.
Including a declaratory statement about ‘religious freedom’ in the Marriage Act
Another Trojan horse for new, adverse treatment of LGBTI Australians is the second of Attorney-General Brandis’ failed amendments: a proposal to add a statement from Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) in the objects of the Marriage Act itself.
At this stage, there are mixed signals about whether the Prime Minister supports this change. What is not ‘mixed’ – indeed, what is unequivocal – is that such a change must be rejected.
In the words of ALP Senate Leader Penny Wong, during the same debate on Tuesday:
“As has been pointed out by a number of legal advisers, and also referenced in some of the documentation provided by the Human Rights Law Centre, there are some questions about the extent to which there may be unintended adverse consequences in relation to this amendment. I would also make the point that we find it somewhat odd that one would cherrypick the ICCPR in this way. For example, article 18.1 is singled out but not article 18.3, which states:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
“Obviously, 18.3 constrains to some extent the rights articulated in 18.1 and reflected in the amendment that Senator Brandis has spoken to. I also note that article 26 of the ICCPR commences as follows:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.
“I pick up those two aspects of the covenant because it seems to us on this side that there’s obviously, certainly in this chamber and to some extent in the community, an interest in discussing the place of religious belief and the way in which the law might safeguard better the right to have such a belief—the right to hold beliefs—and a discussion about the extent to which that belief might affect the application of Australian law. However, as I have said on a number of occasions today, that is a reasonably complex and at times controversial discussion, and it is certainly a discussion that goes quite directly to the way in which religion is dealt with in a secular state and to the extent to which absolute belief, and limited protection under the law for that, need to be balanced.
“The Labor Party’s view reflects to some extent Senator Brandis’ introduction to this amendment, which is that this is a matter that rightly should go through the process that Prime Minister Turnbull has established [the Ruddock review]. We believe that an amendment of this sort would better be considered in the context of that process.”
Greens’ Senator Nick McKim noted even more serious concerns with this amendment:
“Enacting only the first sentence of article 18.1 leaves out the limitations on freedom of religion that are found in the remainder of 18.1 and in article 18.3 and… transforms what is a limited right into an absolute right.
“…I want to note that there is a trend around the world in Western democracies—and this is the case in Europe as well as the United States—where conservative Christian pro bono law groups are pursuing aggressive litigation strategies to justify discrimination against LGBTIQ people. Including article 18.1 of the ICCPR in Australian law will make freedom of religion justiciable and fuel legal conflict in our country. Last year we saw the Australian Christian Lobby establish the pro bono Human Rights Law Alliance… they established that alliance precisely for the purpose of litigating against LGBTIQ people, and the alliance is already running a number of cases on behalf of conservative Christians, including challenges to anti-discrimination law on the basis of the religious freedom provision in the Tasmanian Constitution, the constitution of my home state. Senator Canavan described this amendment as ‘a shield’. It’s not a shield; it’s a sword. It’s a sword that will be wielded by the conservative right against LGBTIQ people in this country, and that’s why it should be stridently opposed.”
I started this post by expressing my disbelief that Malcolm Turnbull could have found a new way to let me, and LGBTI Australians, down. Again.
But, putting aside my own incredulity, that’s exactly what he’s done. Again.
Even after deciding that LGBTI Australians must be subjected to an unnecessary, wasteful and divisive plebiscite on our fundamental human rights.
Even after that was rejected by the Senate, and he determined that we would be subjected to an unprecedented three-month, $100 million postal survey instead.
Even after Australians overwhelmingly voted Yes, and he refused to put forward marriage equality legislation that simply amended the definition, and recognized foreign marriages – without additional discrimination against LGBTI couples.
Even after the Smith Bill was passed by the Senate. Now that legislation that would finally allow all LGBTI couples to marry is before the House of Representatives, and its passage is so close we can almost touch it, the Prime Minister is still finding new ways to treat us as second-class citizens.
But, just as we’ve overcome all of the previous hurdles that have been placed in our way, we must do everything we can to clear this one too.
That means taking action one more time to say that second-class is not good enough. That we won’t accept new forms of discrimination as part of any marriage equality Bill. That the House of Representatives must reject any amendments that can be used to discriminate against us.
With marriage equality set to be debated in Commonwealth Parliament during the next fortnight, I have written the below letter to all MPs and Senators, calling on them to legislate for genuine marriage equality, not a Bill (or amendments) that entrenches our second-class status. To send your own message that #equalmeansequal, click here.
I met my fiancé Steven two weeks after my 30th birthday.
Within a few months it was clear this relationship was something special. Just 17 months after we met, in January 2010, we did what most couples who are in love do: we got engaged.
That means we have been engaged, waiting for the right to marry, for almost eight years.
Obviously, a lot of ‘life’ can happen in eight years. We’ve moved cities, changed jobs – almost as many times as the country has changed Prime Ministers – and even bought a home together (well, the small fraction that isn’t owned by the bank).
But, nearing the end of 2017, we still can’t plan our wedding day. I want to draw your attention to one of the consequences of our extended, involuntary wait.
My grandmother, who is now in the second half of her 90s, would have been able to attend our wedding had we held it when most couples do, within a year or two of our engagement.
Instead, with her health declining and having recently moved into assisted living, she won’t be there when Steven and I tie the knot.
The delay in passing marriage equality, due to the intolerance, and intransigence, of too many politicians over too many years, has stolen that moment of celebration from us all.
Steven’s situation is only slightly better. With a Portuguese background, family is even more important to him. He would love nothing more than to be able to wed in front of his grandmother.
But, in her late 80s and having recently had a pacemaker installed, we cannot ignore the possibility his dream may not come true, especially if marriage equality is delayed any further.
I think I will be even more upset for him if that moment is stolen, too.
Of course, the failure to lead on this issue by Julia Gillard, Tony Abbott, and Malcolm Turnbull among others, has taken much, much more from other couples, including Peter Bonsall-Boone and Peter de Waal who, after 50 years together, will forever be denied the ability to marry each other.
It’s time for you, as our elected representatives, to end the interminable wait for marriage equality, a wait that has already proven too long for too many.
Quit playing games with our relationships. Pass marriage equality now.
I met my fiancé Steven one week after my brother’s wedding. Two years earlier I attended my sister’s wedding.
I look forward to being able to invite both of my siblings, and their respective spouses, to Steven and my nuptials.
When we finally say ‘I do’, though, there is a real chance our marriage will be subject to different terms and conditions than theirs. Because the legislation that will give us the right to marry will likely take away our rights in other areas.
The Marriage Amendment (Definition and Religious Freedoms) Bill 2017, introduced by Liberal Senator Dean Smith, is already deeply flawed, allowing existing civil celebrants to simply declare themselves ‘religious marriage celebrants’ in order to turn away same-sex couples, and unnecessarily duplicating religious exceptions from the Sex Discrimination Act within the Marriage Act.
Yet, there are many MPs and Senators who seem intent on making this unsatisfactory legislation even worse.
From Attorney-General George Brandis, who wants to provide all civil celebrants with the ability to discriminate against couples on the basis of their personal religious or conscientious beliefs, even though their role is entirely secular in nature.
And to add a ‘religious freedom’ declaration to the Act that will almost inevitably be used by the Australian Christian Lobby-created Human Rights Law Alliance to litigate to establish new ways of discriminating against LGBTI couples.
To Treasurer Scott Morrison, who apparently thinks school students need to be protected from learning about couples like Steven and me, and wants to legislate an unprecedented power for parents to withdraw their children from any class that even mentions the fact same-sex marriages exist.
Then there’s Liberal Democrat Senator David Leyonhjelm, who has already circulated amendments that would allow commercial businesses to discriminate against LGBTI couples on their wedding day. And, if they hold one, at their engagement party. Oh, and on all of their wedding anniversaries too.
None of these so-called ‘freedoms to discriminate’ operate currently with respect to inter-faith marriages, or to divorced couples remarrying. The fact they are being proposed now is homophobic.
Nor are any of these new religious exceptions necessary.
All that is required to introduce marriage equality is to amend the definition in the Marriage Act to be the union of two people, and to recognise the foreign marriages of same-sex couples that already exist. Nothing more.
After all, when Steven and I do eventually marry, there is absolutely no reason why we should be treated any differently to, or worse than, my brother or my sister were.
Quit playing games with our rights. Pass genuine marriage equality.
I met my fiancé Steven four days before the 4th anniversary of John Howard’s ban on marriage equality.
His Government’s discriminatory Bill was rushed through the Parliament, and passed by the Senate on Friday 13 August, 2004.
Lesbian, gay, bisexual, transgender and intersex Australians have spent more than 13 years trying to undo his changes, and for a better, fairer, and more-inclusive Marriage Act to be adopted in its place.
The process for doing so should have been the same one employed by the then-Liberal Prime Minister: a parliamentary vote.
Instead, our two more-recent Liberal Prime Ministers have both argued that LGBTI Australians should have to overcome hurdles that have not been placed in front of other groups.
First, it was the proposed plebiscite – a national, non-binding vote that has only been used three times in the 117 years since Federation, but not once to decide on the human rights of a minority, and not once in my lifetime.
Then, when that process was firmly rejected by the Senate – at the request of the LGBTI community itself – the Turnbull Government decided to invent a ‘postal survey’ run by the Australian Bureau of Statistics, a 3-month, $100 million farce that confirmed what every opinion poll of the last decade had already found, while also stirring up homophobia, biphobia and transphobia in the community.
Let’s be clear: the postal survey should never have been held. And it must never, ever be imposed on any other group.
Now, having jumped through those extra hoops, and with marriage equality set to be debated by Commonwealth Parliament, the rules have apparently changed once more.
Instead of respecting the outcome of the process they chose, which overwhelmingly supported marriage equality, some MPs and Senators are spending more time creating additional restrictions to ensure our relationships are considered lesser than the marriages of cisgender heterosexual couples.
They are trying to change the rules of the game, right when LGBTI couples finally get the chance to take our rightful place on the field. Or at the altar. Or wherever we decide to marry.
That simply isn’t good enough.
Quit playing games with our community. Pass marriage equality, and stop creating new ways to discriminate against us.
I met my fiancé Steven at a time when I had started to genuinely wonder whether I would ever find someone to spend my days with, let alone share a wedding day.
As an LGBTI advocate, the ability to marry felt like an abstract, or even hypothetical, right – important, yes, but not something I thought I would exercise myself.
Fortunately, falling in love made the hypothetical real, and today, more than nine years into our relationship, our desire to get married is more real than ever.
Unfortunately, public discussion over the past few weeks has at times felt ‘un-real’, as some MPs and Senators have debated the abstract ability of people to discriminate against LGBTI couples, rather than the practical rights of those couples to marry.
They have focused on hypothetical homophobic bakers, florists, and wedding-venue providers, and lost sight of the fact marriage equality should be about removing discrimination, not adding to it.
Once this parliamentary debate is over, if any of their amendments are passed, the rights of people to discriminate against us will sadly be very real.
The message that parliament would send – that our marriages are second-class – would be very real too. And LGBTI Australians would be reminded of that fact every time we are turned away by civil celebrants, or other wedding-related businesses, for years or even decades into the future.
It’s time for you, as our elected representatives, to decide what kind of legacy you want to leave. A better, fairer, and more-inclusive Australia. Or a country that chose something else, something lesser.
I started this letter by noting that Steven and I met two weeks after my 30th birthday. As much as I might try to deny it that means next year we will celebrate two major milestones: my 40th birthday and, much more significantly, our 10th anniversary.
As verbose as I am, I don’t actually have the words to express how much it would mean to me to finally be able to marry the man I love after all this time.
And so, I make this final plea to you:
Quit playing games. Pass marriage equality now. But, when you do, make sure it treats all couples equally. Because we are. Equal.