No, We Don’t Have Marriage Equality Yet

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.

 

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.

 

Maybe.

 

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.

 

And of course we need to support the efforts of groups like Transforming Tasmania and Transfolk of WA so that they are successful in finally ending forced trans divorce in Tasmania and Western Australia too.

 

Because for as long as any law requires people to divorce their partner in order to obtain accurate identity documentation, while 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.

 

House of Reps Vote

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.

 

Footnotes:

[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 has also passed Western Australia’s lower house, but the Legislative Council there does not sit again until 12 February 2019.

[iii] Authorised under section 47A:

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.

In particular:

  • 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).

[vii] For more on these issues, see Rodney Croome’s excellent recent article in New Matilda, ‘Yes Yes No: Why the History of Marriage Equality Must be Told Accurately’.

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Liberals Claiming Credit for Marriage Equality Can Get in the Bin

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:

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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]

 

  1. 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.

 

  1. 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.

 

Turnbull-on-QA

Former Prime Minister Turnbull on QandA, where he tried to claim credit for marriage equality. Hey Malcolm, Get in the Bin.

 

Footnotes:

[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.

Genderless (Notices of Intended) Marriage

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:

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

 

Sunday 28 October 2018

 

To whom it may concern

 

Notice of Intended Marriage Consultation

 

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:

 

  1. 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.

 

Sincerely

Alastair Lawrie

 

images-1

 

Footnotes:

[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:

  1. 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).

Ending Forced Trans Divorce: Mission Half Accomplished

[NB This article is the second in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]

 

This weekend marks six 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, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 will be 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, half way to this deadline, how have the states and territories responded?

 

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 two other states that have passed legislation in the past six months 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 only last week passed the Miscellaneous Amendment (Marriages) Act 2018. 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.

 

Which means that, half way to the December 2018 deadline, half of Australian jurisdictions have ended forced trans divorce. Mission half accomplished.

 

Of the other jurisdictions, only one has shown movement to abolish this out-dated and unjust law so far:

 

The Queensland Government has introduced the Births, Deaths and Marriages Amendment Bill 2018 into Parliament, which would remove the requirement in section 22 of the Births, Deaths and Marriages Registration Act 2003 that a person be unmarried for their sexual reassignment to be noted on the register. It has already been the subject of a Parliamentary inquiry, and will hopefully be passed shortly. [NB This legislation was passed on Wednesday 13 June 2018, ending forced trans divorce in Queensland.]

 

Which leaves three jurisdictions that still need to start the process of ending forced trans divorce:

 

Western Australia, where sub-section 15(3) and section 18 of the Gender Reassignment Act 2000 mean a person cannot access a recognition certificate, and therefore new birth certificate, if they are married.

 

Tasmania, where sub-section 28A(1)(c) of the Births, Deaths and Marriages Registration Act 1999 excludes married people from applying to register a change of sex, and

 

The Northern Territory, where sub-section 28B(1)(c) of the Births, Deaths and Marriages Registration Act has the same effect.

 

This post will be progressively updated to reflect (hopefully) developments in Western Australia, Tasmania and the Northern Territory.

 

The good news is that, even if those jurisdictions fail to take action, the Commonwealth Sex Discrimination Act will eventually overrule these provisions, thereby allowing trans and gender diverse people who are already married to apply to update their identity documentation.

 

However, it will be much simpler if these jurisdictions take pro-active steps to update their laws before then. It is also a symbolically important step, so that provisions that have had such a negative impact on trans and gender diverse Australians for so long are wiped from the statute books entirely.

 

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7 Reflections on the Marriage Debate

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:

 

  1. 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 Act 1984 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.

 

  1. 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.

 

  1. 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.

 

  1. 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).

 

To find out more about the current status of these laws in your jurisdiction, see: A Quick Guide to Australians LGBTI Anti-Discrimination Laws.

 

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.

 

  1. 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
  • Fixing LGBTI anti-discrimination laws (including the broken NSW Anti-Discrimination Act 1977)
  • 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
  • Ending HIV.

 

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.

 

  1. 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.

 

The postal survey was unnecessary.

 

It was wasteful – at a final cost of $80.5 million (a figure that Coalition MPs should arguably be forced to repay).

 

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.”

 

As Junkee’s Rob Stott aptly described it: “Hey Malcolm, I’m glad you enjoyed the postal survey. It was one of the worst times of my life.”

 

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.

 

  1. 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.

 

Thankfully, his brazen ‘gloating’ has been called out by people like Magda Szubanski and perhaps even more powerfully by Jordan Raskopoulos.

 

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.

 

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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.

 

House of Reps Vote

The moment LGBTI marriage was passed by the House of Representatives.

The robo-debt letter that should be sent

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.

 

Grievance procedures

 

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.

 

Sincerely,

Lesbian, gay, bisexual, transgender and intersex Australians, our families, friends and allies

 

Parliament House

*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.

It’s Not Over Yet

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:

 

  1. 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.

 

This proposal is so terrible it is almost unbelievable we have to keep explaining why, but just to reiterate the many reasons why we should say ‘I don’t’ to religious exceptions for civil celebrants:

 

  • 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.

 

  1. 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.

 

  1. 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.

 

Please make sure you complete the #equalmeansequal webform, calling on MPs to vote against new discrimination: www.equal.org.au/equalmeansequal

 

Because now is definitely not the time to hold your peace.

 

151222 Turnbull

Prime Minister Turnbull, who wants to add new discrimination to the Marriage Amendment (Definition and Religious Freedoms) Bill in the House of Representatives.