Submission to Commonwealth Parliamentary Inquiry into Surrogacy

Update 19 May 2016:

In advance of the widely-anticipated election announcement by Malcolm Turnbull on Sunday May 8, a range of Parliamentary Committees handed down inquiry reports in the first week of May. This included the inquiry into surrogacy conducted by the House of Representatives Standing Committee on Social Policy and Legal Affairs, with their final report – called Surrogacy Matters – available here.

This update will provide a brief summary of that report, including consideration of whether they incorporated any of the recommendations made in my submission to the inquiry (included below).

Perhaps unsurprisingly, given the Committee was chaired by George ‘the Safe Schools program is like grooming’ Christensen, the Committee did not support any change in approach to commercial surrogacy in Australia:

Recommendation 1. The Committee recommends that the practice of commercial surrogacy remain illegal in Australia.

Nevertheless, this is still a disappointing outcome, particularly given the Committee did accept my suggestion that a body like the Australian Law Reform Commission (ALRC) could be tasked to develop best practice legislation in this area – they just decided to limit it to altruistic surrogacy:

Recommendation 2. The Committee recommends that the Australian Government, in conjunction with the Council of Australian Governments, consider the development of a model national law that facilitates altruistic surrogacy in Australia. The model law should have regard to the following four guiding principles:

  • that the best interests of the child should be protected (including the child’s safety and well-being and the child’s right to know about their origins),
  • that the surrogate mother is able to make a free and informed decision about whether to act as a surrogate,
  • that sufficient regulatory protections are in place to protect the surrogate mother from exploitation, and
  • that there is legal clarity about the parent-child relationships that result from the arrangement.

Looking at this recommendation in detail, I can see absolutely no reason why these same ‘guiding principles’ could not also be used to develop a framework for commercial surrogacy for inclusion in the model law (but that would take a Committee, and a Parliament, with more courage than the one that was just dissolved).

On the positive side, the Committee notes on page 5 that “[m]any inquiry participants also highlighted a number of discriminatory provisions that exist in relation to gender, marital status and sexual orientation” in state and territory laws (and referenced submissions from the Australian Human Rights Commission, myself, and the NSW Gay & Lesbian Rights Lobby).

As a result, one of the factors the Committee believes the ALRC should consider is “the need for State and Territory laws to be non-discriminatory” (Recommendation 3), which is obviously welcome.

However, the Committee’s recommendations around international commercial surrogacy are far less welcome – and far more frustrating.

The Committee acknowledged that the ban on domestic commercial surrogacy is a major contributing factor to Australian couples, including LGBTI couples, seeking access to commercial surrogacy in other countries. It also acknowledged that the criminalisation of this practice, by Queensland, NSW and the ACT, has so far been ineffective in stopping it.

But, instead of using this evidence to justify a reconsideration of the domestic prohibition of commercial surrogacy, the Committee decided to reinforce this ‘criminalisation’ agenda:

Recommendation 9. The Committee recommends that the Australian Government introduce legislation to amend the Migration Act 1958 such that Australian residents seeking a passport for a young child to return to Australia are subject to screening by Department of Immigration and Border Protection officials to determine whether they have breached Australian or international surrogacy laws while outside Australia, and that, where the Department is satisfied that breaches have occurred, the Minister for Immigration is given the authority to make determinations in the best interests of the child, including in relation to the custody of the child.

So, in Christensen & co’s ideal world, Department of Immigration and Border Protection officials will investigate Australian families who return from overseas with children born through surrogacy arrangements and, presumably, assist in their criminal prosecution under state and territory law.

Most worrying of all is the proposal for the Minister for Immigration to make determinations about the custody of that child, including potentially stripping their parents of responsibility. Imagine for a moment the current Minister, Peter Dutton (or his predecessor, Scott Morrison) making such decisions, including about LGBTI families? Let’s hope that terrifying reality never comes to pass.

All in all then, while the Committee’s Surrogacy Matters report does include some positive recommendations (such as supporting the principle that state and territory surrogacy laws should be non-discriminatory), its failure to reconsider the ban on domestic commercial surrogacy, and its approach to international commercial surrogacy, is frustrating and worrying, respectively.

George Christensen

George Christensen, Committee Chair.



Original Post:

Committee Secretary

House of Representatives Standing Committee on Social Policy and Legal Affairs

PO Box 6021

Parliament House

Canberra ACT 2600


Thursday 11 February 2016


To whom it may concern


Submission to Commonwealth Parliamentary Inquiry into Surrogacy


Thank you for the opportunity to make a submission to the inquiry into surrogacy, being conducted by the House of Representatives Standing Committee on Social Policy and Legal Affairs.


In this submission, I will not be addressing all eight terms of reference of the inquiry in detail.


Instead, I propose to focus on the following three issues:


  • Surrogacy and lesbian, gay, bisexual, transgender and intersex (LGBTI) parent(s)
  • National consistency and
  • Commercial surrogacy, including international commercial surrogacy.


These three issues are of particular relevance to the first three terms of reference of the inquiry:


  1. the role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements
  2. medical and welfare aspects for all parties, including regulatory requirements for intending parents and the role of health care providers, welfare services and other service providers [and]
  3. issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children.


For context, I am writing this submission as an LGBTI advocate and activist, and as someone who is in a long-term same-sex relationship, but not as someone who intends to enter into a surrogacy arrangement at any point in the foreseeable future.


Surrogacy and LGBTI parents


While I am not an expert in surrogacy policy and/or law across Australia, I am aware that different jurisdictions have adopted different approaches to the eligibility of LGBTI people to access surrogacy.


Specifically, it is my understanding that, while most Australian jurisdictions now allow non-discriminatory access to altruistic surrogacy (including my current state of residence, NSW), some jurisdictions continue to prohibit same-sex couples solely on the basis of their sexual orientation – including both South Australia and Western Australia.


There can be no justification for this discrimination.


The overwhelming majority of credible research shows that children raised in same-sex parented families are as healthy, and as happy, as those raised by mixed-sex couples.


As Deborah Dempsey found in the 2013 research paper “Same-sex parented families in Australia”[i]:


“[o]verall, research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families” [emphasis added].


This conclusion was supported by research in the following year, by Dr Simon Crouch and others, that:


“children with same-sex attracted parents in Australia are being raised in a diverse range of family types. These children are faring well on most measures of child health and wellbeing, and demonstrate higher levels of family cohesion than population samples.”[ii]


These findings accord with reputable studies from overseas, with evidence consistently revealing that children from same-sex parented families experience the same levels of physical and mental health as their peers, if not better.


Given this, I believe that it is time for the remaining Australian jurisdictions to remove any outstanding discrimination against LGBTI people seeking access to surrogacy. To support this objective, the current inquiry should express its support for the equal treatment of LGBTI parents and prospective parents, and encourage remaining jurisdictions to amend their laws.


Recommendation 1: The Committee should expressly support the principle that there should be no discrimination against LGBTI people seeking access to surrogacy and should encourage jurisdictions that currently discriminate against LGBTI people in this area to remove such discrimination as a matter of priority.


National Consistency


The above issue (LGBTI eligibility) is just one area where there is significant inconsistency in the legislative approach to surrogacy across Australia.


There are a variety of other inconsistencies, including the very different treatment of international commercial surrogacy by different states and territories (which will be addressed in more detail below).


There seems to be little justification for Australian jurisdictions to adopt such widely divergent approaches.


Moreover, the differences in legislative approach can have significant impacts on people who may be mobile, moving regularly between jurisdictions, who are contemplating becoming parents and where surrogacy is one, or even the most likely, method in which this may occur.


Alternatively, the differences in legislative approaches to surrogacy may induce, or in some cases compel, people to move between states and territories, especially to avoid possible criminal sanction.


As someone who has already lived in four different jurisdictions for extended periods (and twice in one of those jurisdictions), it seems illogical that at different points in time I would not have had access to altruistic surrogacy due to where I lived at the time, or that currently accessing international commercial surrogacy would make me a criminal in some of those places, but not others.


Wherever possible – and provided that LGBTI people are not denied access to surrogacy because of their sexual orientation, gender identity or intersex status – I believe that the laws regulating surrogacy should be consistent across all Australian jurisdictions, and that the current inquiry should adopt this as a principle for proposed reforms.


Recommendation 2: Provided that LGBTI people are not discriminated against, the Committee should expressly support the principle that the laws regulating surrogacy should be uniform across Australian states and territories, wherever possible.


Commercial Surrogacy, including International Commercial Surrogacy


The first two parts of this submission have covered issues that should be uncontroversial for most people – that LGBTI parents, and prospective parents, should be treated equally, and that, wherever possible, there should be national consistency on the laws which apply to surrogacy.


There is no denying, however, that the third issue is inherently controversial – and that is the question of whether, and if so how, commercial surrogacy should be allowed in Australia.

The current response by Australian states and territories has been to prohibit domestic commercial surrogacy in all circumstances, with three jurisdictions[iii] going one step further and criminalising participation in international commercial surrogacy arrangements as well.


My approach to this issue is informed by the following four observations:


  1. Surrogacy arrangements, and especially commercial surrogacy arrangements, contain a risk of exploitation of the surrogate
  2. The risk of exploitation significantly increases in the absence of appropriate regulatory oversight
  3. There are some women who perform the role of surrogate, who wish to be paid for this service and who would not be exploited by doing so, and
  4. There are many prospective parents, including but not limited to LGBTI (and especially gay male) people, for whom commercial surrogacy is their most likely avenue to become parents and who are therefore willing to participate in these arrangements, domestically or internationally and, in some cases, irrespective of its potential illegality.


Based on these observations, I do not believe that the current approach adopted by the states and territories on this issue is the correct one.


Instead, it is my view that it would be preferable for commercial surrogacy to be made lawful within Australia, but only within a regulatory framework that includes appropriate safeguards and oversight to minimise the risk of exploitation of surrogates.


As I have submitted previously to the NSW Government[iv], and to the National Health & Medical Research Council[v], I believe that the NSW and/or Australian Law Reform Commissions could be tasked with investigating this issue, and proposing a regulatory framework that significantly reduces the risk of surrogate exploitation.


This framework could then be considered by the respective Parliaments, rather than debating the issue of commercial surrogacy in the abstract, which is too often the case, and which too easily leads to blanket bans rather than a more considered approach.


Indeed, as I wrote to the NHMRC:


“While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with… broad-sweeping and all-encompassing statement[s] against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.


“Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.


“However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, certainly in developing countries and/or countries which do not closely regulate surrogacy arrangements.


“It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation…


“I… believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.


“The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).”


It is my view that this process has the potential to produce a regulatory framework to allow commercial surrogacy within Australia that would significantly reduce the risk of surrogate exploitation and therefore allay the concerns, and garner the support, of a majority of stakeholders.


Recommendation 3: The Committee should recommend that the Australian Law Reform Commission be asked to review the issue of domestic commercial surrogacy and develop a regulatory scheme that significantly reduces the risk of exploitation of surrogates and which is then presented for the consideration of Parliament.


The above discussion obviously focuses on the issue of domestic commercial surrogacy, leaving the even more vexed question of international commercial surrogacy unanswered.


To some extent, I would hope that, were commercial surrogacy to be allowed within Australia, the demand to engage in international commercial surrogacy arrangements would be significantly reduced.


However, the introduction of such a scheme, either nationwide or in some states and/or territories, is likely to be years away. In the meantime, Australian individuals and couples will continue to seek to participate in international commercial surrogacy arrangements.


I think it is undeniable that some of these arrangements have already led, and will continue to lead, to the exploitation of the surrogate involved. There have also been very public examples of such arrangements where the child involved has been abandoned.


But I also believe that there are other examples where no such exploitation has taken place, and that the arrangement has demonstrably been to the benefit of all parties concerned, including the parents, the surrogate and the child(ren).


Given this, there are a range of options that could be explored, including the introduction of ‘mutual recognition’ laws, where, provided appropriate safeguards and oversight exist, the commercial surrogacy schemes of specific countries are deemed to be accepted under Australian law. However, I will leave it to experts in this area to provide submissions on how such options might be drafted.


What I do want to comment on is the approach of Queensland, New South Wales and the Australian Capital Territory in criminalising those people who currently engage in international commercial surrogacy arrangements.


While, as indicated above, I understand the motivations behind such prohibitions, I question whether in practice they have been successful. Specifically, it is my understanding that individuals and couples from all three jurisdictions continue to engage in international commercial surrogacy.


Even if the overall number who do so has been reduced from before the respective bans were introduced (which may not be verifiable, and therefore may or may not be true), there are nevertheless negative consequences for children who are born through such arrangements.


This can include increased uncertainty of their legal parentage when their families have returned to Queensland, NSW and the ACT, as well as the obvious risk of criminal sanctions being imposed on their primary caregiver(s) were the international commercial surrogacy arrangement involved to come to the attention of authorities. As a general principle, it is difficult to see how criminalising the parents involved in such cases would benefit the child(ren).


In this context, and given the laws in all three jurisdictions have been in operation for some time, I believe it would be useful for Queensland, New South Wales and the Australian Capital Territory to specifically review their criminalisation of international commercial surrogacy arrangements, including the potential detriment of these policies on the children born as a result of such arrangements.


Recommendation 4: The Committee should recommend that states and territories that have introduced criminal sanctions for people engaging in international commercial surrogacy arrangements should review the effectiveness of these laws, including investigating their impact on the children born as a result of these arrangements.


Thank you again for the opportunity to make a submission to this inquiry. I can be contacted at the details provided with this submission should the Committee wish to obtain additional information, or to seek clarification of any of the above.



Alastair Lawrie



[i] Dempsey, D, “Same-sex parented families in Australia”, Child Family Community Australia, Research Paper No. 18, 2013.

[ii] Crouch, S, Waters, E McNair, R, Power, J, Davis, E, “Parent-reported measures of child health and wellbeing in same-sex parented families: a cross-sectional survey”, BMC Public Health, 21 June 2014.

[iii] ACT (Parentage Act 2004, s45), NSW (Surrogacy Act 2010, s11) and Queensland (Surrogacy Act 2010, s54).

[iv] Submission on Review of the NSW Surrogacy Act 2010, April 23 2014.

[v] Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology Stage 2, September 17 2015.


Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate

Alex Greenwich MP

58 Oxford St


Friday 21 August 2015

Dear Mr Greenwich


Thank you for the opportunity to provide this short submission in response to the above-mentioned Discussion Paper, and for highlighting what is clearly an important issue for transgender people in NSW.

I should begin by noting that I am writing this from the perspective of a cisgender gay man and that, if this submission is contrary to the views expressed by trans* individuals and organisations, then those submissions should obviously be preferred.

Nevertheless, as a long-term advocate and activist within the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, I find it hard to disagree with the premise of the Discussion Paper which is that trans* people should not be required to undergo irreversible sex affirmation surgical procedures before being able to apply to amend their birth certificate.

Similarly, I can see no valid reason why the approach which has been adopted by Ireland – and which is described in the Discussion Paper as ‘world’s best practice’ – should not be adopted here.

This approach – allowing transgender individuals to legally change their birth certificate through a statutory declaration process without any need for medical documentation – has a number of significant advantages.

These include:

  • Recognising the diversity of experience within the transgender community
  • Respecting the personal autonomy of people to identify themselves and
  • Removing the unnecessary ‘medicalisation’ of this process.

Above all, adopting the Irish approach would make it easier for trans* people to obtain documentation which reflects their gender identity, which is a positive outcome in and of itself.

I look forward to seeing the Final Report of this consultation later in 2015, and to the ongoing work of yourself and the NSW Cross-Party LGBTI Working Group on a wide range of other, related issues, including (but not limited to):

  • The abolition of incredibly unjust ‘forced trans* divorce’ laws
  • The removal of exceptions to the NSW Anti-Discrimination Act 1977 which allow private schools to discriminate against trans* students and teachers[i] and
  • The abolition of the unjustifiably broad exceptions granted to religious organisations in sub-section 56(d)[ii] of the same Act.

Thank you in advance for taking this submission into account. Please contact me at the details provided below if you would like clarification or further information about any aspect of this submission.


Alastair Lawrie

[i] Section 38K of the NSW Anti-Discrimination Act 1977, which covers education, provides that “[n]othing in this section applies to or in respect of private educational authorities”.

[ii] “Nothing in this Act affects: … (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

State Member for Sydney Alex Greenwich (source NSW Parliament website).

State Member for Sydney Alex Greenwich (source: NSW Parliament website).

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination

South Australian Law Reform Institute


Monday 6 July 2015


To whom it may concern,

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination from South Australian Laws

Thank you for the opportunity to provide this submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

While I am not a resident of South Australia, I am a passionate advocate for LGBTI rights, and I provide the following comments on possible ways to improve the legal situation of LGBTI people in South Australia, especially in terms of their protections under anti-discrimination law.

Specifically, I would like to suggest three major reforms to the South Australian Equal Opportunity Act 1984 (the ‘Act’), namely:

  1. Amend protected attributes to:
    1. Modernise wording around gender identity, and
    2. Genuinely include intersex status.

The Equal Opportunity Act 1984 currently provides protection to lesbian, gay and bisexual people through section 29 (and subsequent provisions of the Act), because of the definition of ‘sexuality’ in section 5: “sexuality means heterosexuality, homosexuality and bisexuality.”

While the SALRI may wish to consider whether to recommend amendments to the wording of these attributes (potentially to ‘sexual orientation’, to ensure consistency with the provisions of the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013), the primary concerns around protected attributes, and how they are drafted, are in respect of transgender and intersex individuals.

For example, protections for transgender people are based on the term ‘chosen gender’, which is defined under sub-section 5(5) of the Act as: “a person is a person of a chosen gender if –

  • the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex…”

Based on my understanding of transgender activism, and through recent developments of anti-discrimination law within Australia, it is highly likely that using the term ‘chosen gender’, and then defining it in this way, is not best practice.

For example, the Commonwealth Sex Discrimination Act 1984 protections are instead based on ‘gender identity’, which is defined in section 4 of that Act as: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

The Commonwealth definition appears to be significantly more inclusive, especially because it does not use descriptors such as ‘opposite sex’ and therefore avoids strict gender binaries, allowing people who do not identify as either male or female to also be protected.

I suggest the SALRI consider recommending the South Australian Equal Opportunity Act 1984 be amended to incorporate the term, and definition of, ‘gender identity’ from the Commonwealth Sex Discrimination Act 1984.

In a similar way, it is possible that the drafters of subsection 5(5) of the South Australian Equal Opportunity Act 1984 believed that they were including people with intersex variations, when they wrote: “a person is a person of a chosen gender if – …

  • the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.”

However, once again based on my understanding of intersex activism, and on recent developments in anti-discrimination law (particularly at the Commonwealth level, and more recently in Tasmania), it is clear that this definition is not best practice – and is, in fact, inadequate to ensure protection for people on the basis of intersex status.

For this reason, the SALRI should consider recommending that South Australia adopt the provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which was the first anti-discrimination legislation in the world to include ‘intersex status’ as a stand-alone protected attribute.

As a result of those reforms, ‘intersex status’ is now defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as: “intersex status means the status of having physical, hormonal or genetic features that are:

  • neither wholly female nor wholly male; or
  • a combination of female and male; or
  • neither female nor male.”

Adopting this definition would ensure a far larger proportion of people with intersex variations would have protection under South Australia’s anti-discrimination laws.

Obviously, as a cisgender gay man, I am not an expert on either of the grounds of gender identity or intersex status. That is why these issues have been framed as suggestions – and if this is something that the SALRI wishes to take up in more detail, it should do so in close collaboration with South Australian and/or national transgender and intersex advocacy organisations to ensure that whatever language is ultimately adopted is the best, and most inclusive, possible.

  1. Remove broad exceptions granted to religious organisations

The current exceptions which are offered to religious organisations in the Equal Opportunity Act 1984 are overly generous, and their scope should be significantly narrowed.

Section 50 of the Act provides:

Religious bodies

1. This Part does not render unlawful discrimination in relation to –

a. the ordination or appointment of priests, ministers of religion or members of a religious order; or

b. the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

ba. the administration of a body established for religious purposes in accordance with the precepts of that religion; or

c. any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

While both subsections 50(1)(a) and (b) appear to be necessary to protect the genuine exercise of freedom of religion, subsection 50(1)(ba) would only be justified on this basis if it was limited to the operation of explicitly or overtly religious bodies (like churches) and should not apply to other institutions which may be operated by religions but which have a different primary purpose (for example, schools, hospitals, aged care services or other community services).

Subsection 50(1)(c) is also completely unjustifiable given it provides what amounts to essentially a ‘blank cheque’ to organisations that are operated by religious groups to discriminate against lesbian, gay, bisexual or transgender (LGBT) South Australians, both in employment and in service delivery.

There should not be a general right to discriminate against LGBT people, across multiple areas of public life like education, health, aged care or community services, simply because of the religious beliefs of certain individuals or organisations. LGBT South Australians deserve the right to access services, and to apply for or undertake employment, in the public sphere without the threat of being discriminated against solely on the basis of who they are.

The Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which specifically excluded religious exceptions from applying to LGBT people accessing aged care services operated by religious organisations, has successfully demonstrated that:

  1. It is possible to restrict these religious exceptions in law, and
  2. After two years of operation, there have been no practical problems in the application of such provisions.

Even more relevantly, the Tasmanian Anti-Discrimination Act 1998 has not granted explicit exceptions to protections on sexual orientation, gender identity or intersex status to religious organisations – and this approach has also worked well over the past decade.

For example, under the Tasmanian legislation, religious organisations have traditionally only been allowed to discriminate in terms of:

  1. Employment based on religion (section 51)[1] or
  2. Participation in religious observance (section 52)[2].

I suggest that the SALRI consider the long-standing Tasmanian exceptions, which do not allow for general discrimination against LGBTI people on the basis of their sexual orientation, gender identity or intersex status, but only on the grounds of religious belief or activity, as a ‘best practice’ guide to help reform the South Australian Equal Opportunity Act 1984 and therefore improve the anti-discrimination protections which are offered to LGBTI South Australians.[3]

  1. Introduce anti-vilification protections for LGBTI South Australians

The final suggestion relates to the issue of anti-lesbian, gay, bisexual, transgender and intersex vilification.

Specifically, it is to recommend the creation of anti-vilification laws, on the basis of sexual orientation, gender identity and intersex status, which are equivalent to the race-based anti-vilification provisions of the South Australian Racial Vilification Act 1996[4].

To put it bluntly, there is no justification whatsoever to have anti-vilification laws which protect people from racist vilification, but to simultaneously not have anti-vilification laws which apply to homophobia, biphobia, transphobia and intersexphobia.

Homophobia, biphobia, transphobia and intersexphobia are just as unacceptable, and, most importantly, just as harmful, as racism – with significant impacts on the mental health of young LGBTI people in particular. If, as a community, we have (or in this case, South Australia, has) resolved to outlaw racist vilification, then similar laws should also be used to outlaw homophobic, biphobic, transphobic and intersexphobic vilification.

Currently, four Australian jurisdictions (NSW, Queensland, the ACT and Tasmania) have anti-vilification laws which cover (at least some of) the lesbian, gay, bisexual, transgender and intersex communities.

However, given neither the Commonwealth Sex Discrimination Act 1984, nor South Australian law, have any vilification protections on these grounds, none of the LGBTI communities in South Australia have any legal protection from similar conduct.

This situation should change – and I suggest the SALRI recommend the creation of new anti-vilification laws which prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

The past 18 months have seen an extensive community conversation about race-based vilification laws at the Commonwealth level, and specifically whether section 18C of the Racial Discrimination Act 1975 should be repealed, amended or retained.

The outcome of this debate appears to be relatively strong community support for the retention of section 18C. As such, I believe the SALRI should take advantage of this moment to recommend that another marginalised group within Australian society should be offered the same shield against conduct which is similarly destructive.

Thank you again for the opportunity to make a submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

I look forward to the outcome of this consultation, and to the consequent improvements to South Australia’s laws – hopefully including the reforms to the Equal Opportunity Act 1984 recommended in this submission.


Alastair Lawrie

[1] “Section 51: Employment based on religion.

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices or a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.”

[2] “Section 52: Participation in religious observance.

A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to –

  • the ordination or appointment of a priest; or
  • the training and education of any person seeking ordination or appointment as a priest; or
  • the selection or appointment of a person to participate in any religious observance or practice; or
  • any other act that –
    • is carried out in accordance with the doctrine of a particular religion; and
    • is necessary to avoid offending the religious sensitivities of any person of that religion.”

[3] However, I do not believe there is any reason to include the recently added, unnecessary – and unnecessarily discriminatory – provisions included in section 51A of the Tasmanian Act which state: “Section 51A. Admission of person as student based on religion.

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

[4] Section 4 of the SA Racial Vilification Act provides: “Racial vilification. A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race by –

  • threatening physical harm to the person, or members of the group, or to property of the person or members of the group; or
  • inciting others to threaten physical harm to the person, or members of the group, or to property of the person or members of the group.

Maximum penalty:

If the offender is a body corporate – $25 000.

If the offender is a natural person – $5 000, or imprisonment for 3 years, or both.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Updated 12 August 2016:

The twelve year anniversary of Australia’s ban on marriage equality is now only 24 hours away. Unfortunately, the long-awaited repeal of the ban is still some time off.

The best-case scenario: Malcolm Turnbull and his Liberal-National Government abandon their unnecessary, wasteful and harmful plebiscite, hold a free vote and marriage equality becomes law before the 13th anniversary. Alternatively, we could see marriage equality passed later this term, after the plebiscite has wreaked its havoc on young and vulnerable LGBTI people. We could even see marriage equality delayed beyond this term, until sometime in the 2020s (yes, you read that right – 2020s).

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

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

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

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

From Steve and my perspective, as I have written before, we are both very conscious of the fact that, the longer the ban on marriage equality goes on, the less likely it is we will be able to have our remaining grandmothers there for the occasion (either for reasons of ill-health, or worse). They certainly could have been there had we been married four or five years ago (ie after an engagement of 12 or 24 months), but even today it is becoming doubtful [In 2016, it is now clear my grandmother won’t be able to travel to our wedding due to declining health].

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

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

Now, to some that might seem like a petty argument. After all, we will still have ‘anniversaries’ for the significant events of our relationships (for example, Tuesday was the 8th anniversary of when Steve and I first met, and we celebrated the occasion).

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

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

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

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

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

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

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

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

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

10 Things I Hate About Marriage Inequality. #4: Because Julia Gillard let me – and the LGBTI community – down

I don’t cry much. Well, that’s not entirely true. I cry – a lot – at emotionally manipulative movies (and it doesn’t really matter whether they’re good, bad or Sandra Bullock). But outside a darkened cinema I can count on two hands the number of times I have cried over the past twenty years. And almost never in front of other people.

So why then did I find myself gently sobbing, for about 15 minutes, in the middle of a large crowd in Sydney’s Hyde Park, on the afternoon of Saturday December 3rd, 2011? It wasn’t because it was almost the end of what had been an extremely long year professionally, nor was it because I had only had about two hours sleep (although both factors certainly didn’t help).

No, I found myself crying in public, in a way that I genuinely had very little control over, because that was the moment that I knew that, then already almost two years into my engagement to Steve, it was going to be several more years before we would be able to walk down the aisle, in our own country and surrounded by our family and friends.

December 3rd was the day the 2011 ALP National Conference decided that, as well as making support for marriage equality a part of the Party’s platform, it would fundamentally undermine that position by allowing any Labor Party member of parliament to vote against the equal right of lesbian, gay, bisexual, transgender and intersex (LGBTI) people to get married. And with that decision they destroyed the prospects of marriage equality passing in that term, and made it very difficult in the following term too.

What has happened since – the defeat of Marriage Amendment Bills in September 2012, the defeat of the ALP Government in 2013, and the lack of priority and support for this issue by the iAbbott, and then Turnbull, Liberal-National Government in its first term – were all entirely foreseeable on that early summer’s day.

When I wrote this, more than two and a half years since that National Conference vote and then more than four and a half years into Steve and my engagement – with who knows how many more left – and the hurt and anger which I felt on that day is still with me, often not very far from the surface.

I have learnt to channel that disappointment to provide even more energy and impetus to my advocacy and activism for LGBTI rights, for young LGBTI people who need safe schools and an inclusive curriculum, for LGBTI refugees fleeing persecution but who Australia locks up and resettles in countries which criminalise homosexuality, and of course for marriage equality itself.

But something which we must also do is to hold to account those people who are responsible for the ongoing unjustified and, let’s face it, homophobic, biphobic, transphobic and intersexphobic discrimination against LGBTI people in the Commonwealth Marriage Act 1961.

Almost 12 years into the ban on equal marriage and there is plenty of ‘accountability’, or blame, to go around. From John Howard, whose Coalition Government introduced the ban in 2004, to Mark Latham, who ensured the then Labor Opposition rolled over without anything resembling a fight, to all the conservative cheerleaders and News Ltd columnists (tautology, I know) who have opposed progress since then, to the Australian Christian Lobby whose entire existence appears dedicated to halting LGBTI rights, to Joe de Bruyn who sabotaged change within the ALP, his equivalents who have done the same in the Liberal and National Parties, the 98 members of the House of Representatives and 41 Senators who voted against LGBTI equality in parliament in September 2012, and former Prime Minister Tony Abbott who did all he could to defeat or at least delay marriage equality – all must accept their share of responsibility for the fact that lesbian, gay, bisexual, transgender and intersex Australians continue to be 2nd class citizens under the law.

But there is one person I blame above all else, one person who I believe should assume the largest share of responsibility for the fact that Steve and I can still not get married, one person whose actions had the most potential to change that situation for the better, but who instead chose to do exactly the wrong thing, at exactly the wrong time: former Prime Minister Julia Gillard.

On 15 November 2011, in the lead-up to that critical National Conference, Gillard announced her views in an opinion piece in the Sydney Morning Herald. In that article, she chose to support a continued ban on marriage equality in the ALP platform, while also favouring a conscience vote, to be implemented by a rule change to make whatever policy position was ultimately adopted by Conference non-binding on MPs.

In doing so, Gillard chose what was the worst possible option, the one which would do the most damage to the short- and medium-term prospects of marriage equality in Australia.

That is not an over-statement. In practice, there were five main positions which Gillard could have chosen:

• Support for a platform change and a binding vote (the position of most marriage equality activists at the time)
• Support for platform change and a conscience vote (the position ultimately adopted by Conference)
• No position on either – and instead allowing Conference to decide both
• Opposition to platform change and support for a binding vote (which would at least have been consistent with the previous seven years, when all ALP MPs had been bound to vote against equality) or
• Opposition to platform change and support for a conscience vote (Gillard’s position).

If Gillard had chosen any of the four other options described, it is reasonably likely that both the platform change and a binding vote would have been successful at the National Conference, something which would have made marriage equality entirely achievable in 2012 in the process.

Instead, Gillard used her position as Prime Minister, and Leader of the Labor Party, to lean on people to ensure that, no matter what happened in terms of the policy, marriage equality would never be able to be implemented through a binding vote. She chose to actively exert the influence that she had because of her office to deny the right to marry to her fellow Australians on the basis of sexual orientation, gender identity and intersex status.

She went much, much further than simply advocating for a particular outcome: Gillard even chose to be the main sponsor of the motion in favour of a conscience vote, thus transforming the entire issue into a ‘test of leadership’. By stepping into the fray in this way, Gillard had turned the question of marriage equality into a question of loyalty which, for those of us who haven’t (yet) managed to suppress it, was the dominant theme – well, its absence was anyway – of the last term of ALP Government.

Thus, to stand up for the principles of fundamental equality and human rights was seen to be disloyal to the Party leader, and to simultaneously stand up for a binding vote – something which should be standard operating procedure for a collectivist party – was seen as doubly disloyal. And there were people inside the party who were making that very argument – that to support equality, and more importantly, to support a binding vote, was to be disloyal to Gillard – in the days leading up to the crucial ballot.

In the end, Gillard and her supporters couldn’t hold back progress altogether. There was enough support on Conference floor to achieve a resounding victory in terms of changing the platform to support marriage equality – while the vote wasn’t counted, it was estimated to be around 3 to 1 in favour. But her conscience vote resolution was also successful – by a much narrower margin, of 208 to 184.

Then Prime Minister Julia Gillard celebrates after a conscience vote is approved at ALP National Conference in December 2011, a move that destroyed any chance of marriage equality being passed in the last Parliament, and continues to make passage difficult today.

Then Prime Minister Julia Gillard celebrates after a conscience vote is approved at ALP National Conference in December 2011, a move that destroyed any chance of marriage equality being passed in the last Parliament, and continues to make passage difficult today.

In short, it was (just) a bridge too far for the ALP National Conference to effectively ‘roll’ a sitting Prime Minister on both parts of the marriage equality equation.

If she had adopted any of the other positions outlined above, Conference would have only had to ‘defeat’ her once, or even not at all (if she had either done the right thing and supported platform change and a binding vote, or not taken a position to begin with). I genuinely believe that, had Gillard taken a different view, a binding vote would have been more likely than not – meaning that Steve and I might very well be married today.

And that is why, of all the people who have contributed to the current sorry state of affairs in Australia, where LGBTI relationships are deemed not worthy of the same recognition as cisgender heterosexual relationships, I blame Gillard the most – because her actions, above those of any other, were the most decisive in ensuring this 2nd class status was continued.

With the release of Gillard’s memoirs in late 2014, there was a concerted effort to glorify her Prime Ministership, and discuss only the positive accomplishments of her time in office – her rise as the first female Prime Minister, the introduction of a price on carbon, the establishment of the National Disability Insurance Scheme, and the introduction of LGBTI anti-discrimination protections in federal law for the first time. And I would be the first to admit that they were all great accomplishments.

But biography should never be hagiography. So we must not overlook her central role in the defeat of marriage equality, not just in the last term of parliament, but in the subsequent and also potentially in this one too, because she helped to ensure that ALP MPs would not be bound.

In this important respect, former Prime Minister Julia Gillard profoundly let down not just Steve and myself, but all lesbian, gay, bisexual, transgender and intersex Australians who believe that their relationships should be treated fairly and equally under the law. She was someone who should have been on our side, but instead actively worked against us.

She was wrong, and she wronged our community. Her actions were inexcusable, and I know that I and others won’t be accepting any excuses which she might attempt to proffer. Above all, what Julia Gillard did in late 2011 was unforgivable, and I for one will never forgive her. Nor should we ever forget.

[Postscript August 11th 2016: Of course, Julia Gillard has since been given strong competition for the title of “most disappointing Prime Minister on marriage equality”. And no, I’m not talking Tony Abbott, who, at the very least was widely understood to be opposed to LGBTI equality long before he took up the top job. Instead, I am talking about Malcolm Turnbull, who claims to support marriage equality – and even turned up to the 2016 Mardi Gras parade to ‘celebrate’ with the LGBTI community – but who continues to proceed with Abbott’s unnecessary, wasteful and divisive plebiscite. Just like Gillard, he was someone who many people believed would be on ‘our’ side – and yet he is spending political capital doing the bidding of those who would do us harm. Depending on what happens in the next 12 months, it might even turn out that Mr Turnbull snatches this particular title from Ms Gillard’s grasp. But for now, in mid 2016, it is still Gillard who I believe has caused the greatest delay to the happiness of tens of thousands of LGBTI Australian couples.]

10 Things I Hate About Marriage Inequality. #5: Because there’s no intellectual stimulation in arguing with our opponents

There are some public policy issues which, as well as being important, can give rise to ‘intellectual stimulation’. By that I mean something that provokes informed debate, with multiple views, genuine disagreement about the best solution, sometimes even substantive and substantial arguments about the definition of the ‘problem’ itself.

Sadly, marriage equality is not one of these issues. Instead of being an exchange of ideas, for the most part the pro- and anti-marriage equality ‘debate’ is not really a debate at all. And it can’t be. Because it is impossible to have a debate when one side turns up without any arguments whatsoever on their side.

If the past twelve years have taught us anything, it is that anti-marriage equality campaigners are the intellectual Lilliputians of Australian public life. Sure they might have company out there on their ‘island of ignorance’ (hello anti-vaxers!), but it is difficult to think of many other public discussions in recent memory when so much has been said by people who had so little of substance to say.

It has become common to say that the argument for marriage equality has been run and won. And that’s true – except ‘won’ is an understatement. The defeat of anti-marriage equality campaigners, on the intellectual playing field at least, resembles nothing more than the 7:1 drubbing handed out by Germany to Brazil in the 2014 men’s football World Cup.

It is such a one-sided affair that, at times, you almost feel tempted to invoke the ‘mercy rule’ (which the opponents of marriage equality would probably reject anyway because it has too much in common philosophically with euthanasia).

In practice, the vacuity of anti-marriage equality campaigners, like Jim Wallace, or Lyle Shelton, or Cory Bernardi (and countless others), hasn’t stopped them from spouting the same nonsense time and time again over the past decade. It doesn’t matter that what they say on this subject has no credibility, they’ll keep saying it regardless.

Lyle Shelton of the Australian Christian Lobby.

Lyle Shelton of the Australian Christian Lobby.

And that’s the frustrating thing – approaching twelve years since the original ban on same-sex marriage was introduced, and with the possibility of more before equality is finally legislated, it remains our responsibility to have the same public ‘debate’ with these people. To calmly refute the ridiculous claims that marriage equality will harm children, or impact on religious freedom, or that just because marriage has ‘traditionally’ been man-woman that it automatically must remain so in future.

And when I say ‘our’ responsibility, we should acknowledge that this burden has fallen particularly heavily on the shoulders of people like Australian Marriage Equality’s Alex Greenwich, and later Rodney Croome, and the Penny Wongs and Bob Browns of the political world, who have had to sit on countless panels and engage in countless debates with the Jim Wallaces and Lyle Sheltons of the Australian Christian Lobby, while suppressing the natural urge to react emotionally against the ignorance of what is being said. Hats off to them for doing what many of us might struggle to do.

Of course, this isn’t to say there is no intellectual stimulation in the issue of marriage equality per se. There certainly have been, and continue to be, interesting intellectual debates on this subject. It just happens that they are all held between people who already assume that everyone should be equal, irrespective of sexual orientation, gender identity and intersex status.

The debate about whether people should be aiming to make marriage inclusive or abolish it altogether, about whether there was strategic value in pursuing state-based same-sex marriage laws or not (or whether to support the Recognition of Foreign Marriages Bill 2014 or not), about where marriage equality sits on the overall list of priorities for the LGBTI community – all provide more intellectual succour than discussing the issue of marriage equality with a campaigner who seriously believes that marriage, under secular law, should be restricted to cisgender heterosexual couples.

It’s just a shame that we have been consigned to having to continue having this lop-sided non-debate. I for one can’t wait to discuss something a little bit more stimulating – and I’m sure I’m not alone in that.

One final thing – you will hopefully notice that I have been careful to restrict these comments to anti-marriage equality campaigners, rather than all people who do not (or not yet anyway) support marriage equality. I am certainly not accusing all people who hold that view of being ‘ignorant’.

However, I am most definitely saying that, if you have carefully considered the question of marriage equality, and come to the conclusion that the only acceptable form of marriage is one man and one woman, and that you will campaign for that publicly, despite having no arguments on your side that withstand any kind of scrutiny, and against the equality and human rights of your fellow citizens, well, then there’s not much that you could say that is in any way worth listening to.