Marriage equality or marriage discrimination – a simple test

Based on media coverage over the past few days, it now seems possible that Commonwealth Parliament will – finally – hold a free vote in coming weeks on the right of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians to marry.

 

Of course, it is just as likely (perhaps even more likely) that the Turnbull Government will instead decide to hold a non-binding, voluntary postal vote on the subject, but that unnecessary, wasteful, divisive and downright offensive proposal is a subject for another day.

 

What I wanted to write about today is the kind of legislation that might ultimately be voted upon.

 

Because, amidst the understandable excitement of activists and advocates, the LGBTI community, our family members and friends, indeed all Australians who believe in fairness and the right of all people to marry the person they love, that progress might be imminent, we must not overlook a fundamental question:

 

Is it marriage equality, or is it marriage discrimination?

 

That is, does the Bill treat LGBTI-inclusive couples exactly the same as cisgender heterosexual couples, or will it introduce new special rights for civil celebrants and/or other wedding-related businesses to discriminate against us?

 

If it is the former, it is genuine marriage equality. If it is the latter, then it is something else, something lesser: marriage discrimination.

 

Unfortunately, based on multiple news reports it appears that the private member’s bill being drafted by Western Australian Liberal Senator Dean Smith will include new ‘protections’ that provide celebrants with the right to refuse to officiate the ceremonies of LGBTI couples.

 

Given religious celebrants already have this ability, presumably Senator Smith’s Bill will extend this ‘right to discriminate’ to (at least some) civil celebrants.

 

The argument that will inevitably be put forward to justify the differential treatment of couples under the Marriage Act 1961 is that it is necessary to protect the ‘religious freedom’ of the celebrants involved.

 

From my perspective, whether we should accept this argument, and indeed whether we should accept legislation that includes these types of ‘religious exceptions’, comes down to this simple test:

 

Will it treat LGBTI couples in the future differently from, and worse than, divorced people seeking to get (re-)married today?

 

Now, I admit this might seem to be a somewhat strange comparator, so please allow me to explain.

 

There is a wide range of religious beliefs about the rite of marriage, from groups who believe in marriage between more than two people, to others who do not believe in marriage between people of different faiths.

 

One of the more common religious beliefs about marriage, and indeed still the official position of what is the second-largest religious group in Australia (the Catholic Church, after ‘No religion’), is that divorce is a sin, and consequently people who have divorced should not be allowed to re-marry.

 

The Marriage Act currently allows churches, and religious celebrants, the ability to refuse to officiate the ceremonies of couples where one or both parties have already been divorced.

 

However, despite the fact some civil celebrants are Catholic themselves (and therefore may have some qualms about second, third or even fourth marriages), there is no equivalent right for civil celebrants to decline to perform these weddings.

 

And that seems like a reasonable distinction to make – because civil ceremonies under the Marriage Act are secular, rather than religious, in nature, there is no need to provide civil celebrants with the right to reject divorced people on the basis of their personal religious beliefs.

 

But, if it is not deemed essential to protect ‘religious freedom’ by allowing civil celebrants to discriminate on the basis of marital or relationship status now, then it should not be necessary to permit discrimination on the basis of sexual orientation, gender identity or intersex status in the future.

 

Indeed, by comparing the rights of divorced people seeking to re-marry today with the rights of LGBTI couples under any future legislation that seeks to permit all couples to marry, it becomes clear that:

 

Amendments that provide civil celebrants with the ‘right to discriminate’ against LGBTI couples are not based on protecting ‘religious freedom’, but instead are legislating a right to homophobia, biphobia, transphobia and intersexphobia.

 

As a result, any legislation that allows LGBTI Australians to get married, but does so on the condition that civil celebrants are able to turn them away because of their personal prejudices, is not marriage equality, it is marriage discrimination.

 

The Marriage Amendment (Same-Sex Marriage) Bill that was released by the Attorney-General, Senator George Brandis, during the debate on the (traditional) plebiscite way back in October 2016 clearly failed on this front.

 

Not only did it significantly expand the right of civil celebrants to discriminate against LGBTI couples, it also clarified that defence force chaplains (who are public servants) could reject people on the basis of their sexual orientation, gender identity or intersex status. It even allowed for-profit businesses, run by religious organisations on a commercial basis, to turn LGBTI couples away.

 

For all of these reasons, the Marriage Amendment (Same-Sex Marriage) Bill was Unacceptable.

 

It is possible that Senator Smith and others have ‘learned’ from that experience, and that his private member’s bill will look significantly different to the Brandis Bill on the surface. The new ‘protections’ may not even explicitly target LGBTI couples, and instead be couched in more neutral terms.

 

But the real question will be how it treats LGBTI people in its substance. Irrespective of the wording used, if the legislation allows civil celebrants and/or other wedding-related businesses to treat LGBTI couples differently from, and worse than, divorced people seeking to re-marry today, it is simply homophobia, biphobia, transphobia and intersexphobia in a pretty wedding dress (or tuxedo).

 

And so, by all means get excited by the possibility that the interminable debate about the right of LGBTI couples to marry in Australia might soon be over. But we should also be on guard against any proposals that provide civil celebrants and others with the ‘right to discriminate’ against us.

 

We’ve waited long enough for genuine marriage equality. We shouldn’t settle, or be forced to settle, for marriage discrimination.

 

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We should hold off on cutting the celebratory wedding cakes until we know exactly what is in the substance of any Bill, including any religious exceptions it may contain.

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What a binding vote for marriage equality is – and what it is not

With roughly ten weeks left until the 2015 ALP National Conference, and about one month into the public debate around a potential binding vote for marriage equality, there has been considerable media coverage of this issue.

Unfortunately, a lot of this coverage has been unhelpful, focussing on things that might be of interest to political commentators, but in practice having very little to do with what will actually be discussed by delegates sometime between July 24th and 26th.

This post aims to redress some of that imbalance, by attempting to clarify what a binding vote for marriage equality is – and just as importantly, what it is not – about.

A binding vote for marriage equality IS NOT about division, the leadership or the Greens

It was perhaps inevitable that at least some political reporters would cover the question of a binding vote as nothing more than an issue of ‘division’ within the Labor Party, rather than a genuine debate pushed by people who want to see their political party commit to fully supporting the equal rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

What was surprising – and perhaps disappointing – was to observe just how widespread this characterisation was. When even The Guardian writes articles that start like this:

Labor leadership divides over compulsory same-sex marriage yes vote

Tanya Plibersek wants to end the conscience vote, but Bill Shorten says it should stay. And Chris Bowen wants a conscience vote but will now vote for, not against.

Internal division within the Labor party over a binding vote on same-sex marriage has deepened, as senior frontbencher Chris Bowen backflips on his opposition to the issue” (http://www.theguardian.com/australia-news/2015/may/03/labor-leadership-divides-over-compulsory-same-sex-marriage-yes-vote?CMP=soc_567 )

then it is abundantly clear why Australia cannot sustain serious debate, especially on issues such as climate change or refugee policy that are significantly more complicated than this.

Hint to our journalists – this is what internal party democracy looks like, with different people putting forward different positions, and the arguments behind them, in the lead-up to a meeting where representatives from around the country will decide which approach Labor will ultimately take. That is discussion, not ‘division’.

A second recurring theme of coverage has been to view the entire issue through the prism of a supposed ‘leadership challenge’ between current Opposition Leader Bill Shorten, who opposes binding, and Deputy Leader Tanya Plibersek, who supports it (for example, raised in this Sydney Morning Herald article: http://www.smh.com.au/federal-politics/political-news/tanya-plibersek-push-on-samesex-marriage-faces-defeat-amid-labor-leadership-split-20150430-1mww0s.html ).

This is wrong on a number of levels, not least because it is an issue Ms Plibersek has been campaigning on for a number of years – long before she was the Deputy Opposition Leader. It is somewhat galling that, in a political culture where figures are constantly derided for core and non-core promises, and commit backflip after backflip, here someone is being criticised for continuing to push the same progressive agenda she always has even after reaching a senior leadership position.

Indeed, the idea of binding in favour of marriage equality is something that has been pushed by a large number of people within the ALP for a very long time, including well before the last National Conference. At that particular meeting, 184 delegates voted to support a binding vote (narrowly losing to the 208 delegates who supported a conscience vote).

They must have been remarkably prescient, in December 2011, two Prime Ministers and a change of Government ago, to have been expressing a view on a leadership contest in 2015, between two people who were then the Ministers for Financial Services and Superannuation, and Human Services, respectively.

But the main reason why this is not about a leadership challenge is because, while her strong advocacy is obviously welcome, this issue is not really about Ms Plibersek at all.

There are a significant number of ALP MPs and Senators who have expressed their support for a binding vote over the course of the past month (with the Herald reporting that at least 25 members, or almost a third, of caucus back this move: http://www.smh.com.au/federal-politics/political-news/huge-spike-in-labor-mps-support-for-samesex-marriage-20150508-ggx4z4.html ).

And there is an even larger number of ordinary ALP members, and Rainbow Labor members right around the country, who are pursuing this change. To reduce all of their – and our – activism to being about a non-existent leadership challenge is, putting it bluntly, utter rubbish.

Finally, there have a number of reports linking the push by Ms Plibersek and others within the party for a binding vote to a move to combat the rise of the Greens, and specifically as a response to the recent Victorian and NSW State Elections, where the Greens either retained or won the seats of Melbourne, Prahran, Balmain and Newtown.

Malcolm Farr in news.com.au was perhaps the most explicit on this theme: http://www.news.com.au/finance/work/labor-fears-it-is-losing-urban-strongholds-is-behind-the-push-for-binding-marriage-equality-vote/story-fn5tas5k-1227336759408

But, once again, it is hard to see how, when the majority of the Queensland and Tasmanian branches of the ALP voted to call for a binding vote at their state conferences in mid-2014, they were somehow ‘responding’ to elections in other states, that were still six-to-nine months away.

A binding vote for marriage equality has been a long-standing goal of progressive members of the Labor Party – and certainly existed long before the recent inner-city electoral successes of the Greens.

A binding vote for marriage equality IS about both principle and reality

As we all know by now, the overall fight for marriage equality is about nothing more (or less) than the equal treatment of all people, including LGBTI Australians and their relationships, in secular law.

The principle, at its core, is that the Government should not discriminate against people because of their sexual orientation, gender identity or intersex status, by denying them access to state-sanctioned marriage, simply because of who they are and/or who they love.

Turning more specifically to the issue of whether the ALP should adopt a binding vote for marriage equality, it too is about principle – that, as a matter of fundamental equality and human rights, there is no legitimate reason to allow individual MPs and Senators to vote against the caucus position on this issue which acknowledges those rights.

In the same way that the ALP would not allow individual parliamentarians to break from party solidarity to vote for a racist law, there must not be special exceptions provided to allow some MPs and Senators to vote against the rights of LGBTI Australians.

We could have the entire debate, between now and the end of July, focussed exclusively on these two principles.

But marriage equality, and whether we adopt a binding vote, is about more than just that – as we have been starkly reminded over the past fortnight.

Because marriage equality is about reality too – the real-life couples who want nothing more than the right to be married, but who are currently denied that right by their own Government.

Couples like Sandra Yates and Lee Bransden, who were forced to seek money through a crowd-funding campaign to enable them to marry in New Zealand, where marriage equality has been legal for two years, before Ms Bransden dies from lung cancer (http://www.abc.net.au/news/2015-05-04/crowd-funding-campaign-for-gay-wedding-in-new-zealand/6442318 ).

This is the real face of marriage equality – the couples who are waiting for the same rights as everyone else, including those couples for whom time is very quickly running out (and of course the many couples for whom time has tragically already evaporated since the ban was first introduced in 2004).

In this instance, the crowd-funding campaign was successful, and the couple were married in New Zealand on Saturday (http://www.abc.net.au/news/2015-05-16/gay-tasmanian-couple-seal-dying-wish-with-new-zealand-wedding/6475226?WT.ac=statenews_tas ).

Which is heart-warming. But it should not have come to this, we should not be reduced to this – begging via public appeals just to allow older couples to leave the country to marry before they die, and even then stripping them of that legal equality as they re-enter Australia on their way home together for the last time.

This situation is indignity writ large.

Marriage equality is right in principle. Binding for marriage equality is right in principle. But it is the reality – of couples like Sandra and Lee – which reminds us why the issue is so urgent, and why we need as many MPs and Senators as possible, including all of those from the Australian Labor Party, to vote yes on this issue. Right. Now.

A binding vote for marriage equality IS NOT about the ‘rights’ of MPs and Senators to vote no

On the other side of this debate are those who would argue that, while marriage equality may be important, it is more important to respect the supposed ‘rights’ of individual MPs and Senators to vote against it.

The clearest demonstration of this view came on Sunday 3 May when Shadow Treasurer Chris Bowen announced he had switched from his long-standing opposition to marriage equality, to personally supporting it – as part of an ongoing conscience vote. As reported by the Sydney Morning Herald (http://www.smh.com.au/federal-politics/political-news/chris-bowen-drops-opposition-to-samesex-marriage-20150503-1myp1v.html ):

“In a conscience vote I have decided I would support same-sex marriage and that’s not traditionally the approach I took last time,” he said.

“On my marriage certificate at home it has got the Australian coat of arms as it has on all of ours. It is our right as a citizen to get married and it is a right that should be applied equally.”

“I have friends who have had to go overseas to get married; I don’t think they should have to go overseas to get married as Australian citizens so I would support it.”

But Mr Bowen said the matter should be decided by each member of Parliament on its policy merits rather than politicians being forced to vote for or against same-sex marriage.

“I think people should be given their own time to develop their thinking and their approach,” Mr Bowen said…

In effect, Mr Bowen is saying that, while he acknowledges the fundamental injustice experienced by his friends, it would in practice be more unjust to compel his colleagues in the federal parliamentary Labor Party, including Senator Joe Bullock and MP Chris Hayes, to have to vote for his friends’ rights through a binding vote.

This is the reality – people who support a conscience vote in the ALP are actually saying that the right of individual MPs and Senators to vote against marriage equality is more important than the rights of real-life couples, like Sandra and Lee, to marry.

How can that possibly be? One is a genuine injustice – the denial of fundamental rights solely on the basis of sexual orientation, gender identity or intersex status.

The other? How is requiring a Labor member of the House of Representatives, or Senate, to vote in accordance with the Party platform and in favour of marriage equality, in any way unjust, and indeed so unjust that it outweighs anti-LGBTI discrimination?

The way in which opponents of a binding vote try to ‘dress up’ this issue as a matter of competing rights is by claiming that it would be a denial of their freedom of religion to have to vote this way. But, in making this argument, they are misunderstanding and misrepresenting what freedom of religion is, and most importantly, what it is not.

Freedom of religion is allowing people to believe what they wish, including on issues of ‘morality’, within their religion and their particular religious organisations, for example, choosing to recognise, or not recognise as the case may be, LGBTI-inclusive relationships as being equal.

There is nothing in any marriage equality Bill introduced to date that would compel an organised religion to conduct same-sex weddings against its wishes, or to recognise those relationships as equal within their own faith.

And that freedom of religion includes MPs and Senators within the Labor Party – even if they were obliged to support marriage equality under secular law, they would continue to be free to consider LGBTI relationships as second-rate (or worse) within their particular faith.

On the other hand, freedom of religion does not justify allowing those same parliamentarians to impose their particular religious belief, and their definition of marriage, on the rest of us – the growing number of Australians without faith, and the even larger number of believers, including some religious bodies themselves, who do support marriage equality.

The ‘freedom of religion’ of individual MPs and Senators is not a sufficient basis to override the freedom from religion of everyone else, and the legitimate expectation that we should be treated equally under secular law.

And it is definitely not enough of an argument to override the ordinary rules of the Australian Labor Party – which expects solidarity from its parliamentarians on everything from refugees, to metadata, single parent payments to live animal exports, and should be able to expect solidarity on this subject too.

There are only two possible ways in which ‘freedom of religion’ would be a genuine basis on which to argue against a binding vote.

The first would be if a marriage equality law sought to change the definition of marriage within religion(s) – including by ordering particular religious organisations to undertake LGBTI-inclusive marriage ceremonies. And, as already noted, exactly none of the marriage equality Bills proposed in Australia to date require this.

The second would be if a marriage law sought to discriminate against people of religious backgrounds – for example, a law that actively prohibited people of a particular faith (or perhaps prohibited people of different faiths) from marrying, and again no law proposed to date does anything of the sort [as an aside, those same people who claim it would be a denial of fundamental freedoms to compel a religious person to vote for marriage equality had no qualms when LGBTI individuals, including Senators Wong and Pratt, were compelled to vote against their own legal equality].

Given neither of these conditions exist, we are left with a large imbalance, between a genuine injustice on one side (the denial of the right to marry to LGBTI Australians) and only a perceived injustice on the other (the supposed denial of the freedom of religion of individual MPs and Senators), with the latter not withstanding close scrutiny.

The choice between the two should be easy.

Unfortunately, not only does Chris-sy-come-lately Bowen reach the wrong conclusion on this, he – and other recent marriage equality converts like Ed Husic and Julie Owens – take their (il)logic one step further.

As reported by the ABC on Wednesday 6 May, all three have personally switched from opposing to supporting marriage equality (http://www.abc.net.au/news/2015-05-06/western-sydney-labor-mps-swing-to-favour-gay-marriage/6447516 ). But the same report noted that “[a]ll three MPs said the freedom to choose through a conscience vote is an important condition for their support” (emphasis added).

Come again? Do we really have members of the ALP caucus saying they personally support marriage equality, which is also the position outlined in the ALP Party platform, but that they would not support marriage equality if this position was made binding on the Party’s MPs and Senators, in the same way that almost every other issue is subject to a binding vote?

This is really ‘through the looking glass’ stuff. Despite Ed Husic noting that “if there was no logical reason to prevent this change [marriage equality], why stand in the way of it?” (http://www.smh.com.au/federal-politics/political-news/support-for-samesex-marriage-grows-in-the-alp-as-mp-ed-husic-switches-position-20150505-ggu5um.html ) he apparently would do exactly that just to give his colleagues the ‘right’ to vote no.

This is an absurd position to adopt – one hopes it is only (preposterous) posturing ahead of National Conference, and that they will vote yes if and when a binding vote is ultimately adopted with respect to members of caucus.

But irrespective of whether they believe what they are saying or not, Bowen, Husic and Owens, and indeed any ALP MP or Senator who says that marriage equality is important, but not sufficiently important to bind on, should be reminded that this issue is not about them, or their colleagues, or their colleagues’ supposed ‘freedom of religion’ – it is about LGBTI people who are denied equality under secular law.

And there is no reason to extend that injustice for one day longer.

A binding vote for marriage equality IS about the ALP delivering as many yes votes as possible

Of course, the ALP on its own cannot pass marriage equality in the current term of Parliament – in order to pass before the 2016 Federal Election Tony Abbott must grant his MPs a conscience vote.

Consequently, there has been a lot of speculation about what impact an ALP binding vote might have over subsequent machinations within the Liberal Party. Indeed, it is something that I have covered multiple times elsewhere (including under the section “It’s Time to Bind: The Strategy’ here: https://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/).

But, what we need to remember is that the ALP has zero actual control over what the Liberal Party room does behind closed doors – if it did, the Liberals would have granted a conscience vote at some point during the three and a half years that Labor has already had one.

What the ALP does control is its own internal rules.

By adopting a binding vote the Labor Party would be delivering as many votes as it possibly can towards the cause of marriage equality – more than the just over 50% of MPs and Senators who voted yes in September 2012, and more than the 78% of MPs, and 68% of Senators who indicate they would support it if a vote were held today (as reported by the Sydney Morning Herald here: http://www.smh.com.au/federal-politics/political-news/huge-spike-in-labor-mps-support-for-samesex-marriage-20150508-ggx4z4.html ).

It is difficult to see how such a move could be criticised by others who also support marriage equality. To do so is effectively arguing ‘please do not provide more votes to the cause which we all agree is important’.

And yet, this is exactly what some have done in recent weeks – with perhaps the most prominent example being another recent convert to supporting marriage equality, openly-gay Liberal Senator Dean Smith.

Immediately after the latest of Ms Plibersek’s calls for a binding vote, Senator Smith responded by saying he was ‘personally disappointed’ by it (http://www.smh.com.au/national/gay-liberal-senator-dean-smith-slams-tanya-plibersek-over-gay-marriage-move-20150427-1mu99l.html ), that “I have always been distrustful of the Left on this issue and now my personal fears have been realised,” and further that “[t]his has put the cause back and she needs to explain herself to same-sex marriage proponents.”

In 2015, with Australia having fallen behind 18 (and soon to be 20) countries on this issue, we seriously have an openly-gay conservative Senator criticising a progressive Deputy Opposition Leader for having the temerity to seek to deliver more votes from her Party in favour of marriage equality.

Dean-ny-come-lately Smith could have been excused for those comments, given it was the day after the issue had ‘blown up’ in the media and upon further reflection he might have recognised how ridiculous they sounded.

Instead, the following week he gave an interview to The Australian’s Janet Albrechtsen (http://www.theaustralian.com.au/opinion/columnists/binding-vote-on-same-sex-will-set-back-cause-ask-a-gay-liberal/story-e6frg7bo-1227337768868 ), where all he managed to achieve was to dig his own hole that much deeper.

Not only did he reiterate his criticisms of Labor for daring to suggest they might all commit to supporting LGBTI equality, he crucially admitted that, even if there was a conscience vote on both sides:

“marriage equality would likely be defeated. He cautions the advocates of gay marriage inside his party to slow down. “Yes, community opinion is changing, but it is changing slowly and I am comfortable with it changing slowly.”

This admission completely undercuts his arguments. He inadvertently concedes that the only way marriage equality could be passed this term is by a binding vote from Labor and a conscience vote from the Liberals, and yet he is explicitly arguing against that outcome (and also arguing against the ability of a new Labor Government to independently pass marriage equality if it was elected in 2016).

But that isn’t even the most offensive thing about the article – that would be his repeated calls for people to ‘slow down’, to ‘wait’, for their fundamental equality. In addition to the above quote, he also said:

“Give the country as much time as it needs. This is not an issue that is going backwards. It is only heading in one direction and the pace of the forward direction should be left to the community to decide.”

Leaving aside the fact the vast majority of the community is already there (with 72% support from the public, the only roadblock is our Parliament), he directly contradicts his own reason for supporting equality, which is included in the very same article:

“I was on a plane. I realised that Tori (Johnson) was gay. His partner had lost his lifelong partner. I thought, ‘I have lots of gay friends who are waiting for the laws to change. They don’t want to go to New Zealand to marry’.”

So, his reason for finally backing marriage equality is that people shouldn’t have to wait for the same rights as their cisgender, heterosexual counterparts, that it is tragic if they die without having realised those rights, and yet in the next breath he argues that they should wait, for as long as he deems necessary (or, to use his own words, as long as he is comfortable with).

That is simply not good enough, not from someone who supports marriage equality as an issue, nor from one of the few openly-LGBTI people ever elected to the Australian Parliament.

Perhaps, instead of attacking people like Tanya Plibersek for trying to deliver additional votes for marriage equality, Senator Smith should spend a little more time making the case for change within his own party room.

If he is successful in that task – and we, the Labor Party, are successful in achieving a binding vote in July – then we could all even see marriage equality passed this year.

Liberal Senator Dean Smith, who is 'relaxed and comfortable' with LGBTI Australians being made to wait for their human rights.

Liberal Senator Dean Smith, who is ‘relaxed and comfortable’ with LGBTI Australians being made to wait for their human rights.

A binding vote for marriage equality IS NOT over

The last misconception that I wanted to address also happens to be the easiest to debunk – and that is the argument that, just because Opposition Leader Bill Shorten has come out against a binding vote, the debate is somehow over.

Yes, it was disappointing that Mr Shorten chose not to demonstrate leadership on this issue (http://www.abc.net.au/news/2015-04-30/shorten-rejects-calls-to-axe-same-sex-marriage-conscience-vote/6434354 ), instead falling back on platitudes like “I certainly have a view, though, that the best way to win the argument on marriage equality is to convince people not force them” (which, when you think about it, sounds like he is arguing for a conscience vote on anything and everything, not just on LGBTI rights).

Nevertheless, just because the parliamentary Leader of the Party has adopted this position does not mean that delegates to ALP National Conference in July will necessarily agree with him.

In fact, all we need to do is look to his predecessor, then Prime Minister Julia Gillard, and the positions which she took to the 2011 National Conference on this issue; to oppose marriage equality, and to support a binding vote.

Not only did the Conference overwhelmingly reject her homophobia on the first (by a margin so large that the count wasn’t called, so she wouldn’t be embarrassed by how comprehensive her ‘defeat’ was), but delegates very nearly voted against her position on the issue of binding, too –it was only defeated by a margin of 208 votes to 184.

Which demonstrates two things – one, that Shorten’s position might be influential, but it is very much possible for National Conference to disagree with the Leader and two, that all it would take is for 13 people to change their minds for the vote to be resolved differently this time around.

Some commentators (looking at you, Barrie Cassidy) might be surprised by the possibility National Conference could decide this way, but they shouldn’t be.

As raised earlier, almost a third of ALP MPs and Senators already support binding (25 out of 80 – with 33 against and 12 undeclared). And, as demonstrated by successive national ballots, for National President and Party Leader, the general membership is in fact much more progressive than the parliamentary caucus.

All of which is to suggest that success on a resolution for a binding vote is very much a possibility. But it will not happen without a sustained push in the weeks that remain – and that is something we all have a responsibility to pursue, in whatever way we can. It’s time we all demanded that #ItsTimeToBind.

LGBTI Voices Absent from the Chamber

This week marked the first sittings of the 44th Parliament of the Commonwealth of Australia. It also marked the 44th sittings in which there have been no openly lesbian, gay, bisexual, transgender or intersex (LGBTI) members of the House of Representatives. The achievements of prominent Senators over the past 15 years – most notably former Greens Leader, Bob Brown, and current Leader of the ALP Opposition in the Senate, Penny Wong – mean many people, including some within the LGBTI community, are unaware of this fact.

However, the truth remains that, 38 years after the first Australian state decriminalised homosexuality (South Australia in 1975), and 16 since the last (Tasmania in 1997), no openly LGBTI MP has ever occupied a seat in our federal lower house. This ongoing absence is both an embarrassment, and means Australia is a statistical outlier amongst similar countries.

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Above: now retired, Senator Bob Brown, former leader of the Greens.

The United Kingdom has a long, and mostly proud, history of ‘out’ House of Commons MPs. Leaving aside the ‘outing’ of Labour’s Maureen Colquhoun in 1976, fellow Labour MP Chris Smith voluntarily came out just a year into his first term, way back in 1984. The first Tory to come out in office – Matthew Parris – did so the same year. In fact, with roughly 20 current openly LGBTI House of Commons Members (there’s so many it’s getting hard to keep up), even adjusting for size Westminster features the equivalent of 4 or 5 openly LGBTI Australian House of Reps MPs.

New Zealand is similarly a long way ahead of Australia. Like the UK, our Trans-Tasman cousins had a female MP who was ‘outed’ whilst in office (Marilyn Waring from the Nationals, in 1976), with the first MP to publicly come out being Labour’s Chris Carter, shortly after his election twenty years ago. New Zealand even had the world’s first openly transsexual Member of Parliament, Georgina Beyer, before the turn of the last millennium. And, despite having a national list as part of their electoral system, these (and several other openly LGBTI) MPs represented single-member geographic electorates.

Meanwhile, the Canadian history of openly LGBTI lower house MPs has already reached a quarter century, following Svend Robinson’s pubic declaration in 1988. Even the United States Congress has featured openly LGBTI members in their House of Representatives; after Democrat Gerry Studds was outed in 1983, fellow Democrat Barney Frank came out voluntarily in 1987. Heck, the first Republican Members of Congress to either be outed (Steve Gunderson in 1994) or come out voluntarily (Jim Koelbe in 1996) happened almost two decades ago.

So, what has gone wrong in the Australian political system such that, despite having six openly LGBTI Senators or Senators-elect (in addition to Brown and Wong, there’s Democrat Brian Greig, Labor’s Louise Pratt, Liberal Dean Smith and newly-elected Green Janet Rice), not one openly lesbian, gay, bisexual, transgender of intersex MP has ever won a seat in the House of Reps? How is it that Liberal Kevin Ekendahl, contesting the seat of Melbourne Ports in September 2013, appears to be the candidate to come closest – and even he fell more than 3.5% short?

The first possible explanation is that the party machines, in particular of the Coalition and the ALP, have actively operated to prevent LGBTI politicians from rising to the top. Given Australia’s incredibly strong two-party system (much stronger than the UK, New Zealand or Canada), it’s plausible that the increasingly powerful religious/conservative wing of the Liberal and National parties, and the virulently homophobic SDA, led by Joe De Bruyn inside the ALP, have each stopped the emergence of LGBTI politicians in Australia.

Except they haven’t been completely successful – 3 of the 6 openly LGBTI Senators have come from major parties (although none yet from the Nationals). And it ignores the Senate’s position as a quasi-‘insiders club’, where the majority of people elected have themselves emerged from, or at least have the support of, the party hierarchy. Which means that, even if discrimination within the party machine offers some of the explanation, there must be more to it.

A second possible explanation is that our political parties, operating in a system of single-member electorates with compulsory voting and compulsory preferential voting, have taken conscious decisions to find candidates who do not risk alienating any specific part of the electorate, and therefore have ruled out pre-selecting openly LGBTI candidates; or have nominated them to the multi-member Senate instead. Especially in marginal suburban or regional electorates, even a small backlash from voters motivated by homophobia (or who could be made to feel so through an exploitative campaign by opponents) could arguably be the difference between success or footnote.

At least historically, that could have been a somewhat rational, albeit craven, view from inside our major parties. But over time, with the growing acceptance of LGBTI people throughout Australian society, that perspective should have become irrelevant. And, once again, it cannot offer a full explanation, because, even accounting for different electoral systems in other countries, LGBTI candidates have had to counter, and survive, explicitly homophobic campaigns against them elsewhere. That could, and should, have happened here too.

A third possible explanation is that LGBTI people themselves have ‘self-selected’ out of becoming members of the House of Reps. There are two main ways in which this could have happened. First, if LGBTI advocates and achievers, becoming disgruntled by a (real or perceived) lack of progress on equality inside the major parties, chose instead to focus their energies on minor parties like the Democrats or, later, Greens, then they have largely ruled themselves out of being viable candidates for the House of Reps. The fact that 3 of the 6 openly LGBTI Senators to date have come from these smaller parties lends some weight to this hypothesis.

The other way in which an LGBTI person might rule themselves out is that, having progressed within the major parties and been in a position to challenge for pre-selection, they instead chose not to expose themselves to public scrutiny of their sexual orientation, gender identity or intersex status, or the possibility of outright homophobia. It’s been reported before that this is one reason why Justice Michael Kirby chose the law instead of politics (as an aside, imagine the achievements of Kirby as an activist Attorney-General?). It’s possible this fear continues to be a factor today. And, given the sexism and misogyny that is still directed at our female politicians, who’s to say they’re being irrational?

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Above: Senator the Hon Penny Wong, currently Leader of the ALP Opposition in the Senate, with her family. Unfortunately, as a Senator she can no longer be promoted unless or until she moves to the House of Representatives.

Last month, Bill Shorten made addressing this issue, through the introduction of LGBTI affirmative action rules for ALP candidates, one of his policy planks in the contest for Labor Leader. The proposal, oft described as a quota, drew condemnation from a diverse range of people, including Andrew Bolt and Crikey’s Guy Rundle. Disappointingly, the debate over his solution (which, for the record, I think is worthy of consideration) ignored the fact that Shorten was talking about a real problem – that LGBTI people continue to be excluded from Australia’s House of Government, long after they have stormed the barricades in comparable nations.

It’s important this problem is addressed, not because a Parliament must automatically reflect the demographic make-up of the people it represents, but because, at a time when the rights of LGBTI people continue to be a matter of major public debate (see: marriage equality), we should at least be at the table; or on a green chair or two, anyway. But above all, removing the barriers which have, in the past, operated to prevent openly LGBTI people being elected to the House of Representatives, means clearing the way to ensure that the best possible candidates are put before the Australian people, irrespective of their sexual orientation, gender identity or intersex status. That’s something we all deserve.

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UPDATE 7 JANUARY 2016:

On Saturday 5 December 2015, Trent Zimmerman became the first out gay man to be elected to the House of Representatives, in the North Sydney by-election created by the resignation of former Treasurer Joe Hockey.

A Liberal, Mr Zimmerman will be the first out member of the LGBTI community to serve in the lower house of our federal parliament when he formally takes his seat on Tuesday 2 February 2016.

While his historic victory was a long time coming, there is some hope that the 2016 Federal Election may even see other out LGBTI representatives elected to join him. The best chance at this stage appears to be gay army major Pat O’Neill, standing for Labor in the marginal seat of Brisbane.

Other candidates with admittedly longer odds include Carl Katter (ALP) and Jason Ball (Greens) in Higgins which is currently held by Liberal Kelly O’Dwyer (they both had much stronger chances before Malcolm Turnbull replaced the bigoted Tony Abbott as Prime Minister), and Labor’s Sophie Ismail who is running against Green Adam Bandt in Melbourne.

Of course, even if Mr O’Neill succeeds, two MPs out of a chamber of 150 do not a landslide make. LGBTI voices will still be under-represented when the issue of marriage equality is debated (yet again) next term, as well as other issues of importance to the LGBTI community.

And Australia remains well behind in terms of LGBTI representation, both in comparison to similar countries elsewhere, and when we remember the fact that there has still not been an out transgender or intersex member in either house. Despite Mr Zimmerman’s victory, there is still a very long way to go.

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Liberal Trent Zimmerman became the first out LGBTI person elected to the House of Representatives on 5 December 2015 [image source: The Weekly Times].

Federal LGBTI Anti-Discrimination Protections, At Last

This week, there was a major legal development which will have a direct and lasting impact on the lives of all lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. No, I am not talking about the US Supreme Court decisions overturning the Defense of Marriage Act, and Prop 8 in California.

Welcome as those decisions are, they will not directly impact Australians, outside of those people who are in bi-national relationships with US citizens (of course, the SCOTUS decision could have significant indirect impact in terms of confirming the global momentum towards marriage equality and heightening the embarrassment we feel that Australia has not adopted this reform).

The major achievement which I am referring to is the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. 38 years after the passage of the Racial Discrimination Act, three decades after the Sex Discrimination Act, two decades since Disability was protected, and nine years since Age was covered, we finally have federal anti-discrimination legislation of our own.

Five days later and I am still smiling about this. And I am still pleased that the removal of exceptions for religious organisations in the provision of aged care services was included, despite the formal Opposition of the Liberal and National Parties. This is incredibly important, not just in terms of protecting vulnerable older LGBTI Australians as they enter aged care facilities, but also in terms of its precedent value – contrary to the public statements of Shadow Attorney-General Senator George Brandis, freedom of religion should not trump the right of LGBTI Australians not to be discriminated against.

Hopefully, the removal of religious exceptions – outside of who can be a member of a congregation, how religious ceremonies are conducted and who is appointed as ministers of religion – will ultimately be delivered.

In the meantime, it is very important that we remember and pay tribute to those LGBTI activists who have helped to make this happen, as well as the politicians who have assisted to achieve this historic reform.

In terms of activists, I would particularly like to mention Anna Brown of the Victorian Gay & Lesbian Rights Lobby, long-term activist Corey Irlam and NSW Gay & Lesbian Rights Lobby policy officer Jed Horner, who were all on the ground in Canberra in the critical final weeks, as people who the community should thank. I think we should also congratulate people like Sally Goldner of Transgender Victoria (and likely several others who I am not aware of) for their success in ensuring an inclusive definition of trans issues in the Bill.

Above all, it was an amazing effort by Gina Wilson and Morgan Carpenter of OII Australia for them not only to raise public consciousness of the needs of intersex Australians, but also for achieving their inclusion as a specific protected attribute in the SDA Bill, the first time intersex people have been explicitly protected at federal level anywhere in the world.

Unfortunately, given the long and winding road which eventually delivered federal LGBTI anti-discrimination protections in Australia it is next to impossible to note all of those who put in the ground work which led up to this year’s Bill, but thank you nonetheless.

In terms of political support, I think it is fair to say that the legislation could not have been delivered without the hard work of Attorney-General Mark Dreyfus, who had oversight of the Bill, as well as the more ‘behind-the-scenes’ support of the ALP’s two queer Senators, Penny Wong and Louise Pratt. And I genuinely believe the removal of the religious aged care service provision exception would not have happened without the efforts of Minister for Mental Health & Ageing Mark Butler. Underneath all of this work, Rainbow Labor played a key role in ensuring the issue of LGBTI anti-discrimination reform remained on the ALP’s agenda.

In the current Parliament, the Bill obviously would not have progressed without the critical support of the Australian Greens and people like Senator Sarah Hanson-Young (who has portfolio responsibility for LGBTI issues). And the Independent cross-benchers should be thanked for shepherding the Bill through, as well as Liberal Senators Sue Boyce (for supporting) and Dean Smith (for abstaining), for providing moral support for the, as yet unnamed, House of Representatives Liberal MPs who were prepared to abstain to ensure its ultimate passage.

As with LGBTI activists, the long history of this issue means it is difficult to point out all of the MPs who have championed this issue over the years. But I would like to pay special tribute to the gay former Democrats Senator Brian Greig who helped to put this issue on the national legislative agenda through his private member’s bill.

Anyway, that is a not-at-all comprehensive list of people who have helped to make the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 a reality. Apologies to those people omitted – please accept that it was not deliberate. This might seem to some like an indulgent blog post, but thanking those people who make our successes happen is not something which our community has traditionally been very good at, and this is my small attempt to redress a little bit of that. Hopefully those people, named and unnamed, know the incredible difference they have made to current and future generations of LGBTI Australians.