Tag Archives: LGBTI rights

LGBTI Voices Absent from the Chamber

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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.

Trent-Zimmerman

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

Submission on Crimes Amendment (Provocation) Bill 2013 re Homosexual Advance (or ‘Gay Panic’) Defence

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I am writing to make a submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013, as released by the Attorney-General, the Hon Greg Smith MP, on 17 October 2013.

First, I would like to commend the Attorney-General, and the O’Farrell Government more broadly, for developing a Bill which, if passed, would finally abolish the homosexual advance (or ‘gay panic’) defence.

The homosexual advance defence has long been a stain on the fabric of our criminal justice system, resulting in the ‘downgrading’ of convictions from murder to manslaughter where it is not justified, and in doing so implying that the victim was in some way at fault, even to a small extent that they ‘deserved’ what happened to them.

Sadly, this has not been an abstract injustice, restricted to the statute books, but a defence that has been used, successfully, in multiple criminal trials over the past 20 years. This means that there is every chance that it could be used again, unless and until this Bill is passed.

Which brings me to my first recommendation: The Crimes Amendment (Provocation) Bill 2013 should be passed as soon as possible. This will help ensure that no future victim is disrespected by the fact their murderer escapes with a lesser conviction, and probable reduced sentence, simply because that murderer had a homophobic reaction to the victim’s non-violent sexual advance.

If, for whatever reason, the NSW Government is unable to progress this legislation with the urgency that it requires then, as a fall-back, I suggest that it consider amending clause 2 of the Bill to ensure that the Act has retrospective application.

Specifically, if the legislation is not passed by the end of the first sittings in 2014 (on Thursday March 27th), consideration should be given to back-dating the legislation to take effect from the date the Government formally confirmed its intention to introduce these reforms through the release of this Exposure Draft (ie on 17 October 2013).

I acknowledge that this would be a drastic step for any Parliament to take. No-one should casually amend the criminal law in such a way, especially where the offence involved carries significant penalties, without a compelling justification.

But I sincerely believe that a case for doing so could be made in these circumstances: that the injustice of our legal system effectively saying that a killing is less offensive, less contrary to community standards, less worthy of punishment than other killings, simply because the non-violent sexual advance involved was from one man to another, is so great that the question of retrospective application at least merits further debate.

Despite this, my overall preference would be for the Bill to be passed without including such provisions, and that this happen in the shortest possible timeframe, making retrospectivity less of a pressing concern.

My second recommendation deals with another potential issue which would remain unresolved even if the Exposure Draft Bill was passed, and that is: The new Crimes Act section 23, introduced by the Crimes Amendment (Provocation) Bill 2013, should specify that the ordinary person is not homophobic.

The Exposure Draft Bill includes multiple safeguards to help ensure that a non-violent sexual advance, whether same-sex or heterosexual, cannot be used as the basis of the partial defence of extreme provocation.

Specifically, proposed new sub-section 23(2)(b) requires that the conduct of the deceased was a “serious indictable offence”, which would clearly not include a non-violent sexual advance. Even more categorically, sub-section 23(3)(a) ensures that the partial defence cannot be raised in circumstances where “the conduct was only a non-violent sexual advance to the accused.” I strongly support the inclusion of both provisions.

However, in the event of a contested murder prosecution, there can be doubt about the boundary between what constitutes a non-violent sexual advance and a violent sexual advance. This doubt can, and often will, be exploited by a defendant, especially because the victim is not available to provide their version of events. It would be a potentially perverse, although perhaps unavoidable, consequence of the Government’s reforms that it would introduce an even greater incentive for a defendant to establish that the victim’s sexual advance was itself violent.

If the defendant is successful in establishing that the victim’s sexual advance was indeed violent (or that there is at least some evidence to support this: see proposed sub-section 23(7)), then proposed sub-section 23(2)(d) becomes relevant, and it maintains the existing ‘ordinary person’ test to assess whether the loss of self-control is accepted as the basis of this partial defence.

It is possible that, given hardening community attitudes against rape, any violent sexual advance, irrespective of the sexes or genders of the people involved, would now satisfy the ‘ordinary person’ test in terms of partially excusing that loss of self-control. If that is the case, then there would be no unjustified discrimination on the basis of sexual orientation, and the law would not require further amendment.

However, it is also possible that a male defendant could claim a violent sexual advance from another man is more egregious or offensive, and therefore more worthy of the application of the partial defence, than a violent sexual advance in other circumstances (eg a violent sexual advance from a woman to a man).

Based on the existing case-law (including Green v The Queen 1997), there is a possibility that this argument would be accepted – the consequence of which being that, once again, the killing of someone who makes a same-sex sexual advance would be treated as less serious than the killing of someone who makes a heterosexual sexual advance in the same circumstances (the only difference being that both would now be violent).

Given the significant step forward overall which would be achieved by the passage of this Bill, I do not wish to see it undermined by the ongoing possibility of such homophobic discrimination, which is why I propose that new section 23 include a provision that, at least for the purposes of this partial defence, the ordinary person is not homophobic, bi-phobic, trans-phobic or prejudiced towards intersex people (specifically, the ordinary person does not discriminate on the basis of sexual orientation, gender identity or intersex status).

As with  the suggestion about retrospectivity, discussed earlier, this would be an unusual step for a Parliament to take, and leaves open for consideration a range of other factors which may or may not need to be prescribed (for example, that the ordinary person is not racist or sexist). I make no comment here about those or other factors (other than noting that, whatever list may be deemed necessary include, it should be inclusive rather than exhaustive).

Nevertheless, given we are fully aware that the law has allowed homophobic discrimination within the partial defence of provocation in the past, I believe we should be actively considering how to prevent further such discrimination in the future within the new partial defence of extreme provocation. Even if the section itself is not amended, alternatives could include either or both the explanatory memorandum and second reading speech noting that it is not the Parliament’s intention that the new partial defence should operate in a homophobic manner.

Leaving aside these two recommendations, it is my firm belief that the passage of the Crimes Amendment (Provocation) Bill 2013 would be a significant, and long-overdue, achievement. This is something that the lesbian, gay, bisexual, transgender and intersex (LGBTI) community has been campaigning on for many years: it is my sincere hope that the homosexual advance (or gay panic’’) defence will finally be consigned to the dustbin of history in the very near future.

Liberal-National Policies on LGBTI Issues for Federal Election 2013

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I was tempted to leave the content of this article completely blank, because that would be a reasonably accurate reflection of the LGBTI policies of the Liberal-National Parties for the election that is now only two days away. That is because, outside of two not very encouraging exceptions, the Coalition doesn’t appear to have any LGBTI policies for this year’s poll.

The Real Solutions booklet, which Tony Abbott and his team have been clutching tight for most of this year, makes no mention of LGBTI Australians. And, as far as I can tell, none of the policies which have been put up on the Liberal campaign website do so either (although I am happy to be corrected).

The two exceptions that I mention include Abbott’s signature Paid Parental Leave scheme (covered in my blog post earlier this week, a commitment which does not include references to same-sex couples in the formal policy document, but which Abbott, Hockey and O’Dwyer have subsequently been forced to confirm will include LGBTI parents).

And the second exception is marriage equality, which does not actually involve a policy commitment at all, only that the decision will be left to a post-election party-room to decide whether to have a conscience vote in the next term, rather than having a formal position against (although the Opposition Leader has made his own views – which remain strongly opposed to marriage equality – very clear).

This paucity of policies was confirmed through the 2013 LGBTI Federal Election Survey, which was recently conducted by the NSW Gay & Lesbian Rights Lobby, Victorian Gay & Lesbian Rights Lobby, Transgender Victoria and Organisation Intersex International Australia. This was a question and answer document, with 43 different questions spread over 12 distinct topics.

Unfortunately, while the ALP and Greens provided individual answers to all 43 questions, the Liberal-National Coalition did not provide individual answers, instead they provided a cover letter, and two-and-a-bit page attachment, which provided broad brushstrokes but very few details of what they will (and won’t) do.

The LGBTI groups I mentioned then analysed this response according to four different categories: Yes/Good Response, Qualified/Partial Response, No/Bad Response and Response does not answer the question. (For a copy of the survey documents, including the Liberal-National letter and the assessment made by the four groups, go to www.lgbti2013.org.au)

The result: for a full 29 of the 43 questions asked (ie two thirds of the total), the Liberal-National Parties’ response was deemed to not answer the question at all. In fact, in only 4 out of 43 responses (less than 10%) were the Liberal-Nationals deemed to give a positive response, with 8 qualifieds, and 2 outright nos. By way of comparison, the LGBTI groups deemed that the ALP did not answer 4 questions out of 43, and the Greens only 1 out of the 43 questions, and the clear majority of both responses were deemed to be Yes/Good.

Given that they answered less than a third of the questions asked, it is no surprise that there are entire policy areas which the Liberal-National Coalition have simply not taken a position on, and these touch a number of things which are very important to different sections of the LGBTI community.

Specifically, the Abbott Liberal-National Coalition failed to provide an answer on:

  • Whether they support the recent amendments to the Sex Discrimination Act which have prohibited discrimination against LGBT people by religious organisations in aged care services
  • Whether they oppose the introduction of civil unions before the passage of marriage equality
  • Whether they will continue to issue Certificates of No Impediment, which currently allow Australian couples to marry in other countries which have already legislated for marriage equality
  • Whether they will attempt to overrule States and Territories that introduce marriage equality (either through new legislation or High Court challenge)
  • Whether they will continue to fund dedicated LGBTI health initiatives, outside of HIV, and (possibly) some mental health initiatives
  • Whether they will retain the dedicated National LGBTI Ageing and Aged Care Strategy, and keep LGBTI as a special needs group in the Aged Care Act
  • Whether they will provide public funding for trans* surgeries
  • Whether they would help end ‘normalising’ surgery (including coerced sterilisation) on intersex infants
  • Whether they will use foreign policies resources to advocate specifically for decriminalisation of homosexuality around the world and
  • Whether they support the ‘resettlement’ of LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and Nauru).

As you can see, that is a pretty impressive roll-call of issues which the Liberal-National Coalition failed to provide an answer on. In my personal opinion, I think that this is a pretty disappointing (*alert: possible understatement) level of detail from people who will likely be occupying the Government benches from next week.

One interpretation of this would be that, by not answering these questions, they are leaving open the possibility of doing any and all of them (which could include doing positive things which they have not answered, but could equally involve doing a range of negative things, including taking away rights for LGBTI people or funding for LGBTI initiatives).

Another interpretation would be that, by failing to outline any concrete negative plans – for example, by failing to state that they will bring back religious exemptions in aged care services in the Sex Discrimination Act – even after being specifically asked, they will not have a mandate to do these when in Government. After all, it is difficult to claim a mandate to roll back rights or strip funding when you keep those policies (if you have them) a secret. And that is an argument that I expect the LGBTI community will be using if the Abbott Government does adopt negative policies in these areas after the election.

Abbott’s Paid Parental Leave Scheme and Same-Sex Parents

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On Saturday (7 September), it is highly likely that the Liberal and National Parties will together win at least 76 seats (and possibly many more) and that therefore Tony Abbott will be our Prime Minister when he wakes up on Sunday.

There are a range of things which he has promised which essentially amount to undoing, whether in part or in full, things that the Rudd/Gillard/Rudd Governments have done (eg the Carbon Price or the NBN), or simply taking things further in the same direction (such as the mistreatment of refugees). There have been very few major new policies or policy directions from Abbott and the Coalition.

However, there has been one major social policy commitment from Tony Abbott. Indeed, it comes with a substantial financial cost, and he has gone as far as to call it his ‘signature’ policy. That is of course Paid Parental Leave (PPL), for women who earn up to $150,000 per year, paid by the Government for 26 weeks (meaning that it is significantly more expansive in both the size of the payment, and its duration, than the existing Labor scheme).

The full details of Abbott’s PPL scheme were announced on Sunday 18 August, through a pre-release with News Corp papers, followed up by a policy launch, complete with a 14 page glossy document, outlining how the policy would operate in practice. It even included a range of scenarios, using different women’s names and estimating how much they stood to gain (and how much more that would be than the Labor scheme).

From an LGBTI activist’s point of view, however, there was a glaring omission: there was not a single mention of parents who did not neatly fit into a ‘traditional heterosexual/opposite-sex couple’. In none of the 14 pages was there a single mention of non-heterosexual or same-sex couples. Which left me, and countless other LGBTI people around the country, asking two questions:

  1. Are same-sex couples even covered by the scheme?
  2. If they are covered, how are their payments calculated? (which is a legitimate and not necessarily straight-forward question, given the PPL scheme states that, where a heterosexual father is the primary carer, he is entitled to PPL – but if he earns more than the mother, his payments are reduced according to the wage of his female partner).

On the morning of the 18th, I scanned both traditional and social media in an effort to see whether there was an answer to one or both of these questions. I could find very little outside of an assertion from Samantha Maiden on twitter that yes, same-sex couples would be covered – although that turned out to be based on nothing more than her assumption that they should be covered (I would post the full twitter exchange here except that it took a lengthy back and forth before establishing that she had absolutely no evidence for her original assertion).

I then turned to social media to ask questions directly of Tony Abbott, and, given he represents one of the most populous LGBTI electorates in Australia, Malcolm Turnbull, but neither responded. I even tried to ask the Liberal Party direct: nada. Eventually, in the evening, I managed to get an answer from Joe Hockey. I reproduce a screenshot of that exchange here:
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Taking him at his word would mean that, for lesbian couples, if the non-birth mother is the designated primary carer, they would be able to receive the payments based on their own wage, even if it was higher than the birth mother’s. For male same-sex couples, the primary carer’s wage would apply irrespective of whose was higher (those are the clear implications from his response).

Wanting to have more to go on than just a tweet, through my involvement in the NSW Gay & Lesbian Rights Lobby, I also helped to ensure that Paid Parental Leave, and specifically whether it covered same-sex couples on a no less favourable basis than opposite-sex couples, was one of the 42 questions which were asked in the 2013 Federal Election survey of the ALP, Liberal-Nationals and the Greens Parties. While both the ALP and Greens responses addressed this question, the Liberal Party response did not (in fact, the Liberal/Nationals did not answer the vast majority of the questions asked: see www.lgbti2013.org.au for more details, a topic I will be posting more on later in the week).

Anyway, that lack of response did not inspire much confidence in me either – both the formal 14 page policy document, and now the direct answer to a question from the NSW Gay & Lesbian Rights Lobby, Victorian Gay & Lesbian Rights Lobby, Transgender Victoria and Organisation Intersex International Australia, had failed to include any commitment that the PPL policy was intended to be non-discriminatory in its operation.

Which meant that Tony Abbott’s comments on Jon Faine on ABC Radio Melbourne on Friday 30 August were very welcome. From the Guardian Australia website:

“Abbott gets a caller during the Faine interview who is clearly unhappy with lesbian mothers – two of them – getting access to the Coalition’s PPL scheme. Will two lesbian mothers get the payment?

Abbott’s response:

If they both have kids, fine ..

Abbott says the same would happen with the government’s PPL scheme. The caller says at least they wouldn’t get $75,000.”

At the very least, Abbott has committed that his PPL scheme will cover lesbian co-parents (and, given the policy document does include adoptive parents, by rights it should cover gay male co-parents as well).

As an additional source of comfort, on Saturday 31 August at the LGBTI Policy Forum held in Melbourne, the Liberal Member for Higgins, Kelly O’Dwyer, gave the following response to an ABC journalist:

JEFF WATERS: While you’re there, if I may – will the opposition’s paid parental leave scheme include both parents in same sex relationship who is have children?

KELLY O’DWYER: Our paid parental leave scheme is non-discriminatory. We believe that the carer of the child is entitled to the paid parental leave scheme. That is what we have announced. That is what we are committed to implementing. So the person who is going to be looking after the child will be entitled to the paid parental leave scheme which is capped to ensure that that child has the best possible start in life, and that families, all families, heterosexual families, homosexual families, all families are better off. (Applause)

Overall, despite the fact that it has been much harder than it should have been to get a direct answer from Abbott and the Liberal/National Parties on this issue, we are now in a position where they have clearly promised that same-sex couples will be included in its PPL scheme.

Which means that if, for whatever reason (aka Nationals and/or backbench revolt), they do not extend Paid Parental Leave to cover same-sex parents, it will be a broken promise, and on something which Tony Abbott has claimed is his ‘signature’ policy. That would be a massive blow to the credibility of him and his new Government – put another way, given he is likely to be moving into the Lodge next week, there is significant pressure on him to live up to his commitment for his PPL policy to be LGBTI inclusive.

PS Obviously, if there are other places where the Coalition or its MPs have committed to the PPL covering same-sex couples please send them to me and I will link them here. I would hope that Serkan Ozturk at the Star Observer’s interview with Malcolm Turnbull, which is expected to be published on Thursday, will also cover this topic and I will publish his response on this as well.

NSW Same-Sex Marriage Inquiry Submission

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Given the NSW Legislative Council inquiry is set to release its final report on the issue of state-based marriage laws at 3:30pm today, I thought now might be a good opportunity to publish my submission to the inquiry from back in March (but which was not published by the Committee on their website, given the overwhelming community response to this inquiry).

Anyway, as you can see it is a bit of a personal submission and I obviously stand by what I submitted, but acknowledge that I am going to need to be clearer from here on the difference between marriage equality (where all lesbian, gay, bisexual, transgender and intersex people can marry whoever they choose), and same-sex marriage, which, as the name suggests, is much more limited but which, sadly, might be the only constitutional option available to NSW (we’ll see later today.

Anyway, here is my submission. Let me know whay you think:

Legislative Council Social Issues Committee

Inquiry into Same Sex Marriage Law in NSW

Submission by Alastair Lawrie

Friday 1 March 2013

I am writing in support of the introduction of state-based marriage laws in NSW. While, ultimately, marriage equality can only be fully realised in Australia through the passage of an inclusive federal Marriage Act, in the meantime I encourage the NSW parliament to allow lesbian, gay, bisexual, transgender and intersex-inclusive (LGBTI) couples to have their relationships recognised through state-based marriage, if they so choose.

In this submission I will briefly address the four terms of reference, before discussing the story of my relationship with my fiancé Steve, and the reasons why I think we deserve the same right to be married as anybody else.

1)      Any legal issues surrounding the passing of marriage laws at a State level, including but not limited to:

  1. a.       The impact of interaction of such law with the Commonwealth Marriage Act 1961
  2. b.      The rights of any party married under such law in other States’ and Federal jurisdiction
  3. The rights of the parties married under such a law upon dissolution of the marriage.

I am not a constitutional or family law lawyer and, as such, I do not propose to discuss whether state-based marriage laws would be constitutional in great detail, or how these laws would interact with Commonwealth and other state and territory laws, or indeed, act upon the breakdown of such marriages.

I will simply note that there is legal debate about the constitutional possibilities of state-based marriage. Professor George Williams has canvassed the legal arguments in favour of state-based marriage laws in his article “Can Tasmania Legislate for Same-Sex Marriage?”[1] I think that there is at least a credible argument, as outlined in his article, to say that it is possible that the Courts could find state-based marriage to be constitutional.

It should also be remembered that there is still some doubt that an amendment to the Commonwealth Marriage Act 1961 introducing marriage equality would be constitutional at the federal level. Irrespective of which level of government first introduces marriage equality, this matter will inevitably end up in the courts.

It should also be noted that the federal parliament has abrogated its responsibility in this area. By explicitly introducing a ban on equal marriage in 2004, and then rejecting legislation to overturn that ban in 2012, Australia’s federal parliamentarians have comprehensively failed in their duty to provide basic fairness and equality to its LGBTI citizens, including the LGBTI citizens of NSW. Based on the size of this defeat, and the immediate political outlook, it appears unlikely that this ban will be overturned at any point in the next five or even possibly 10 years.

In this context, with legal uncertainty about which level of Government can introduce marriage equality, and faced with the homophobic, bi-phobic, trans-phobic and anti-intersex intransigence of the federal parliament, I believe it is incumbent upon state parliamentarians to at least attempt to introduce marriage equality at a state level.

In the event that the legislation is overturned by the courts, which is as always their prerogative, nothing will have been lost. LGBTI-inclusive couples will know that there is a risk of this outcome, and will enter into any state-based marriages with open eyes. Nevertheless, if people are married and the legislation is ruled invalid at a later date, at least in the interim these couples will have the belief that they are married under law. And the overturning of these marriages by the courts may provide the spark required for the federal parliament to finally take the necessary action in this area.

In the event that the legislation is found to be valid by the courts, which is also possible, then the NSW parliament will have done a truly wonderful thing by recognising the ability of thousands of LGBTI-inclusive couples to have their relationships recognised as marriages under law, if they so desire. This would be an amazing recognition by state parliamentarians of the equality of LGBTI people, and the value of their relationships. If there is even a small chance of this outcome, then I cannot think of a valid reason for the parliament to shy away from this noble endeavour.

2)      The response of other jurisdictions both in Australia and overseas to demands for marriage equality.

The movement for marriage equality, both within Australia and across the world, is strong and only growing stronger. Despite the setback of defeat in federal parliament last September, and the subsequent defeat of Tasmanian state-based marriage legislation in late 2012, other Australian jurisdictions are still considering their own marriage equality proposals (including the Australian Capital Territory and South Australia). Indeed, it has been reported that the Tasmanian Labor Government and Greens are considering reintroducing their state-based marriage legislation after the upper house elections in the first half of this year (noting that the legislation was only narrowly defeated in their upper house).

Around the world, marriage equality has already been introduced in 11 extremely diverse countries: South Africa, Argentina, Canada, Portugal, Spain, Belgium, the Netherlands, Denmark, Sweden, Norway and Iceland. I am also aware of current marriage equality proposals in our near neighbours New Zealand, as well as Taiwan, Nepal, Andorra, France, Luxembourg, Finland, Scotland, England and Wales, Uruguay and Colombia (in fact, it is difficult keeping track of the long list of countries which are actively considering this issue, which means I am sure to have missed some).

In other countries with federal structures of government, state-based marriage equality has been introduced in some states of Brazil, Mexico and the United States. The United States is the best illustration of the ongoing progress of the movement for marriage equality. It is now legal there in nine states (Connecticut, Iowa, Maine, Massachusetts, Maryland, Maine, New Hampshire, New York, Vermont, and Washington, as well as the District of Columbia). While in early-adopting US jurisdictions marriage equality was introduced through either court decisions or legislative reforms (or through a combination of both), the recent additions of Maryland, Maine and Washington were the result of popular ballots (and a referendum to ban marriage equality was also defeated in Minnesota last November).

The tide of public opinion across the world is turning in favour of marriage equality, and this is one reason why 11 national governments, and some sub-national states, have introduced LGBTI equality. It is my hope that the Australian Government eventually comes to the same conclusion – but in the meantime, I believe that the parliamentarians of NSW have an ethical obligation to, at least partially, fill that void.

3)      Any alternative models of legislation including civil unions.

In some jurisdictions, civil unions have been offered as a supposed compromise proposal between the LGBTI community on the one hand, who are calling for formal relationship recognition, and religious fundamentalists on the other, who believe that the term marriage is reserved only for ‘traditional heterosexual’ couples and that, while substantive rights can be conferred on non-heterosexual couples, these relationships should carry a different name (ie civil unions or civil partnerships).

In truth, this is not a genuine compromise but instead simply a reinforcement or further entrenchment of inequality. Deliberately choosing a separate name inherently makes those relationships ‘different’ or ‘other’. Saying that opposite-sex/heterosexual couples can be ‘married’, while all other couples can only be ‘civil unioned’, does not overcome inequality; it simply perpetuates it, finding a novel way to demonstrate that those relationships are second-class.

The idea that different groups of people can be considered equal while having separate institutions has been tried before, in many different countries and applying to many different groups (including groups based on race, religion and sex). In none of these different contexts has it actually meant genuine equality. In terms of racial segregation, the US Supreme Court, in the famous case of Brown v Board of Education (1954), saw through the conceit of this concept and instead found that ‘separate but equal is never equal’.

That principle applies just as much to LGBTI people, and to their relationship recognition. To set up an entirely new system of relationship recognition for LGBTI-inclusive couples, and to maintain that system separate from the relationship recognition granted to heterosexual/opposite-sex couples, is not genuine equality. It is no wonder that the vast majority of LGBTI people reject this type of distinction and instead demand full equality. We will accept nothing less.

There are two additional points which should be made in relation to civil unions. The first is that civil unions have been adopted in some jurisdictions which are quite similar to Australia – including New Zealand, the United Kingdom and some US states. In none of these places have civil unions been adopted as a long-term solution – as described above, New Zealand, Scotland, England and Wales are all actively considering moving to marriage equality in the near future (and in several US states civil unions were merely a precursor to marriage equality). Civil unions have proved to be only an inconvenient half-way house or road-stop along the toad to equality, merely delaying full equality and ultimately pleasing no-one. There is no reason why NSW should adopt such a flawed approach.

Secondly, in some jurisdictions, particularly US states, civil unions have held some attraction because they did not have de facto recognition laws in place beforehand, meaning that the introduction of civil unions at least had the advantage of conferring additional substantive rights which LGBTI-inclusive couples did not already possess. Given that NSW and Australia have both passed comprehensive de facto relationship recognition for LGBTI-inclusive couples, this reason does not apply here. Once again, there is no justification for a new and separate category of relationships called civil unions.

4)      Changes in social attitudes (if any) to marriage in Australia.

The concept of marriage has undergone many changes over time. Originally an institution which involved male ownership of women (with that ownership passing from the father to the husband), the law now recognises the two parties to a marriage to be equal. In some countries and at some points in time, there were also laws against marriage between races – happily miscegenation laws are a thing of the past. The majority of marriages used to be performed within churches, whereas now the vast majority of weddings are officiated by civil celebrants. And the ideas of divorce, and later no-fault divorce, have been added to our marriage laws, without undermining the institution itself.

These changes show that the institution of marriage has evolved over time, changing for the better to accommodate ongoing enlightenment in societal attitudes on gender, race, religion and relationship breakdown. Through these changes, what we now understand as the fundamental nature of marriage – that it is an institution to recognise the love and commitment between two people – has not altered.

This meaning can evolve again to accommodate the fact that lesbian, gay, bisexual, transgender and intersex people are equal citizens, and should be treated equally in every respect, including relationship recognition. If society, through its laws, conveys certain rights on opposite-sex/heterosexual couples, there is no good argument to deny those same rights to other people on the basis of their sexual orientation, gender identity or intersex status.

This is a proposition which has been accepted by the majority of the Australian population. Opinion poll after opinion poll has shown that a growing majority of people support the extension of marriage rights to all adult couples, whether opposite-sex/heterosexual or LGBTI-inclusive. A Galaxy Poll in August 2012 found that 64% of Australians supported marriage equality, with only 30% opposed. This support existed across men and women, across all age groups, and from voters of all political persuasions.

The figures for NSW were consistent with this level of support – 62% of people in NSW supported marriage equality, including 28% strongly supporting, while only 32% in total were opposed. I am loathe to cite opinion polls as a stand-alone reason for social change (see Appendix A for further discussion of this point). Nevertheless, it is clear that the population have already accepted the solid public policy reasons for marriage equality – our parliamentarians should do the same.

Steve and me

My fiancé Steve and I have been together for more than four and a half years. We met two weeks after my 30th birthday. I had begun to think that I might not ever meet the person who I was supposed to be with, and then suddenly, he was standing right there in front of me.

Steve and I are the epitome of your average, everyday couple. We have our ups and downs, just like everyone else, but we know that we love each other and that is enough to get us through.

We live our lives in the suburbs. We both work, and are trying to save enough money to buy a house (and, like other couples, are finding it hard in the Sydney property market!) We might have children in the future, we might not – we certainly want to own our own house and be settled in one place before we seriously consider doing so.

Steve and I make compromises for each other – he moved to Canberra to be with me when I was working there, and I have subsequently moved to Sydney when he wanted to move back. We do most things together, and wouldn’t have it any other way.

We got engaged more than 3 years ago. I took him on a holiday to Melbourne, and was so incredibly happy when I got down on bended knee and he said yes. I still can’t believe that someone as wonderful as him has agreed to spend the rest of his life with me.

We want to have our wedding in Australia – that is why we decided to wait for last year’s Marriage Act Amendment Bills to be considered by the federal parliament, in the hope that our federal parliamentarians might allow us to get married in the same way that opposite-sex/heterosexual couples can.

Steve and I decided that, after that terribly disappointing defeat, we would nevertheless wait for the NSW state-based marriage proposal to be debated before making the decision about finally setting a date, and most importantly, a venue. Of course, state-based marriage is not quite the same – it involves setting up a new marriage scheme separate from the existing one. But we think that it would be incredibly powerful to have our marriage recognised by the state in which we live.

If the NSW marriage amendment is defeated, then we will not wait any longer. More than three years is long enough – and I certainly don’t think many heterosexual couples would accept their engagement being made that long because their government(s) refused to allow them to tie the knot. They certainly wouldn’t accept potentially being made to wait more than 10 years, which is possible if both the federal and state parliament voted no on this issue.

Obviously, that means Steve and I will have to go overseas to get married. If New Zealand passes their law in the first half of this year, then we would most likely go there. One of the advantages of New Zealand as a location is that at least some of our family members and friends might be able to join us on our special day. If New Zealand doesn’t pass marriage equality, then we are thinking we might go to New York.

That is not as romantic as it might sound. While some of it would obviously be wonderful, and I will be happy wherever I get to marry my husband, it will also be bittersweet because we would be doing so in the absence of most of our family and friends, who would not be able to travel there (whether because they could not get enough time off work, could not afford the expense, have young children, are too old, or have health problems and cannot travel that far).

Imagine that – the decisions of your government(s) effectively determining the guest list at your wedding. No other married couples would tolerate that, and nor do we. In particular, Steve and I both have grandmothers who we love very dearly, and would love to have them with us – Steve in particular would be devastated if his grandmother was unable to attend our wedding.

If we were able to get married in Sydney, then at the very least his grandmother should be able to join us (and if it had been in place federally when we first got engaged my grandmother might have been able to join us too, although she is now probably getting too old to even travel to Sydney). As it stands, if we are forced to go to New Zealand, then neither of our grandmothers would be able to join us due to their age and health.

These are the real world consequences of the decision made by the federal parliament last year, and the potential consequences of your decision later this year. Please consider them before you cast your vote on this issue.

And please do not consider passing civil unions as some kind of supposed ‘compromise’ between the LGBTI community and religious fundamentalists. Steve and I are engaged to be married, not civil union-ed. When I proposed to him, I asked whether he would marry me – and when we do (finally) have our wedding, I will be asking him to be my husband, not my civil partner.

Civil unions, passed in the absence of marriage equality, are inherently second-best. Steve and I do not accept them as a substitute, and nor should we have to.

There are thousands of other LGBTI-inclusive couples in NSW, just like Steve and me, waiting to get married. We are the couples who watched last year while the federal parliament deliberated on our fundamental human rights and who, sadly, decided that we are not first-class citizens in our own country, that our relationships are not deserving of the same recognition as others.

We will be watching again later this year, when it comes time for NSW parliamentarians to cast their votes. Hopefully, the members of the NSW Legislative Assembly and Legislative Council can ‘show up’ their federal counterparts, by demonstrating just how easy it is to make thousands of people profoundly happy.

After all, that is the ultimate consequence of this vote. There is no downside in voting to allow additional couples to celebrate their love by getting married. But the upside is immense – being able to make many thousands of LGBTI-inclusive couples, and their families and friends, happy. I don’t think the choice is that hard – please make the right one.

[1] Williams, George, “Can Tasmania Legislate for Same-Sex Marriage?”, The University of Tasmania Law Review, Vol 31, No 2, 2012, pp117-133.

Rainbow Crossings? What else have you got?

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The City of Sydney held its Rainbow Flag/Crossing public consultation on Tuesday night (July 16th) at Paddington Town Hall.

While I am not the world’s biggest fan of a Rainbow Flag (I think that it would be a ‘nice’ thing for Sydney to have to commemorate the LGBTI history of the city, but there might be better options to do that as well – see discussion below), I went along because the forum also included a panel looking at the most important issues confronting Sydney’s LGBTI community today.

The following are my four main observations about the forum:

1. Who knew that butcher’s paper, hastily scrawled ideas and scribes reporting back to the broader group was still a thing, especially in a room full of more than 100 people? It was certainly not what I expected when I walked in the door (and I still don’t know whether it worked or not).

2. The forum, including a presentation from the person who ‘led’ the Rainbow Crossing movement, probably demonstrated the limitations of that particular form of activism. While chalking is/was a great opportunity to engage different people from across the wider community (and extend the message of acceptance to straight allies), its moment may have passed. And showing photos of Chinese children chalking a rainbow outside rubble, or Vietnamese orphans living with HIV jumping behind a rainbow, might not be as inspiring as you think – it might instead lead audience members to wonder about the much bigger problems which these people face, and which will not be overcome with temporary distractions.

3. There are probably better, although admittedly more expensive, ideas for celebrating the LGBTI community of Sydney than either a Rainbow Flag or Rainbow Crossings. Our table’s (entirely unoriginal) idea was to provide for a permanent LGBTI museum, which could provide an ongoing reflection on the history of LGBTI Sydney, and Australia. I think something might have been lost in the translation of our notes to what ended up on the City of Sydney website on this – whereas we wrote ‘permanent LGBTI museum’ the website describes it merely as ‘permanent space for a museum and exhibitions’. To put it bluntly, we don’t just want the space, we want the funding to help make a museum happen (link to Have Your Say consultation here: http://sydneyyoursay.com.au/GLBTI?module=news#tool)

4. The discussion of the issues confronting the LGBTI community in Sydney today was probably the most interesting part of the night. A lot of worthy ideas were raised (including youth suicide and mental health, discrimination in schools, religious exceptions, transgender services etc). But one issue which was apparently not raised outside our table, and which certainly wasn’t reported on by anybody back to the group (we weren’t asked) was the issue of rising HIV notifications. Less than 2 weeks since the release of figures showing a 24% rise of HIV notifications in NSW in 2012, and an 18% rise in notifications resulting from sex between men (which still accounts for 81% of transmissions in the state), it seemed that HIV notifications, and the enormous challenges which lie beneath it, wasn’t worth much of a mention. I was a little bit shocked by that result (although some older, more cynical heads around the table described it as disappointing but not surprising).

In any event, the failure of rising HIV notifications to register at a community event like this, and especially less than 2 weeks since the data was released, means that there is a lot of work for groups like ACON to do. But just as importantly, I think it means there is a collective responsibility for the gay male community of Sydney to consider why we don’t think increasing HIV notifications is a major issue for our community in 2013.

How Does Tony Abbott’s Paid Parental Leave Scheme Affect Same-Sex Parents?

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The following is a letter which I have tonight sent to the Leader of the Opposition, the Hon Tony Abbott MP, about his Paid Parental Leave (PPL) policy. Despite the fact that PPL has been Liberal-National policy for more than 3 years, it remains unclear whether same-sex parents are included on an equal basis and, if so, how the rate of payment to the primary carer is calculated.

While I probably don’t expect an answer from him before the election, I think it is incumbent upon all activists in this area to keep asking these questions until we get a response – because after all, we deserve to know how this policy will affect LGBTI people before cast their votes.

Dear Mr Abbott

PAID PARENTAL LEAVE AND SAME-SEX PARENTS

I am writing to you concerning the Paid Parental Leave (PPL) policy which you are taking to the 2013 Federal Election. Specifically, I would like to know how the PPL policy will apply to same-sex parents.

Firstly, can you please confirm that same-sex couples will qualify, on an equal basis, to PPL under a Liberal-National Government? This should include the ability of one parent to access primary carer leave, and another parent to access the shorter, paid parental leave – in the same way that heterosexual couples would qualify.

Secondly, I would like to know how the rates of these payments will be calculated. Based on information already released, my understanding is that, for all heterosexual couples, primary carer payments will be calculated according to the salary of the ‘mother’ (irrespective of who is in fact the primary carer after birth).

How are payment rates for the primary carer calculated for same-sex couples, including male couples who have children through adoption or surrogacy? The salary of the ‘birth mother’ in these circumstances may be irrelevant, especially where she does not become a parent of the child. In this case, would same-sex parents be able to nominate the primary carer and therefore the salary according to which the payment is calculated?

These are important questions which you and the Liberal-National Coalition should answer ahead of the election – Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community deserve to know how one of your long-standing policies affects them, or indeed whether it covers them at all.

Thank you in advance for considering this correspondence.

Yours sincerely

Alastair Lawrie

#QandA, Senator Brandis and LGBTI Anti-Discrimination Reforms

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On Monday night (June 24th) I had the opportunity to attend the filming of QandA at the ABC studios in Ultimo, Sydney. As on two previous occasions, I was told that my question had been shortlisted. However, unlike those previous occasions, this time I got to ask it.

I feel privileged to have done so. I got to ask Senator George Brandis, the Shadow Attorney-General, live on national television why the Liberal and National Parties were so desperate that religious aged care facilities should be able to discriminate on the basis on sexual orientation and gender identity, that they would scupper the entire anti-discrimination reform if this exception was not preserved.

And it was also timely – the Senate had voted on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 that evening (where it was passed by the Labor Government and the Greens), and it was due to be voted on by the House of Representatives the following day (and where the numbers were also far closer).

The answer given by Senator Brandis to my question (and to my supplementary) was of course disappointing, confirming that the Liberal and National Parties do not believe that the right of lesbian, gay, bisexual, transgender and intersex Australians not to be discriminated against is either fundamental or universal.

But it was his answer to Tony Jones’ follow-up that was truly extraordinary, particularly this exchange:

Tony Jones: But just on principle, you are saying that religious freedom supersedes the freedom of your sexuality?

George Brandis: Yes, I am, as a matter of fact. Yes I am.

All Australians, and especially LGBTI Australians, should consider this statement, from the likely Attorney-General under a Tony Abbott-led Government, before casting their ballot later this year.

There was one final bonus of my appearance on QandA, and it was unexpected. On Thursday (June 27th) the Australian Christian Lobby put out a media release condemning the Government for the passage of the Sex Discrimination Amendment Bill, and supporting Senator Brandis’ position. This media release included the full transcript of my exchange with Senator Brandis, as well as Tony Jones’ questions.

So, not only do I now have the ‘street cred’ of having been quoted disapprovingly in an ACL media release, but they also saved me the time and effort of having to put together the following transcript. Thanks ACL!

ALASTAIR LAWRIE: My question is to Senator Brandis. Last Tuesday you announced that the Coalition would block any LGBIT anti-discrimination bill that did not allow religious aged-care service providers to discriminate on the basis of sexual orientation and gender identity. This is despite the fact that these agencies themselves do not believe they need this exception. You seem to be putting a theoretical religious freedom above practical protections. Why don’t you believe that older lesbians, gay men, bisexuals and transgender Australians, people who have grown up when their love was criminalised, who lost friends and lovers to HIV and AIDS, have the right to grow old in dignity and respect that they deserve?

GEORGE BRANDIS: It is a very important question that you ask and let me explain what the Opposition’s position is. But there was one statement in your question which wasn’t quite right. You said that the religious institutions, the churches, didn’t themselves want the exemption so far as concerned aged care facilities. That’s not right. Some said they didn’t want it. Most said they did. So don’t be misled by a misleading statement by the Attorney-General. On the broader issue, when the bill, the sex discrimination bill, was introduced into the Parliament, I took a submission to the Shadow Cabinet and to our party room which was, I think without a dissenting voice, endorsed that we should support it. And the reason we support it is because it is actually the policy we took to the 2010 election, that the provisions of the Sex Discrimination Act should extend to sexuality as a protected attribute. The Government knew that they had the Opposition on board with this. In fact, the Government’s measure was itself taken from the Opposition’s report on the broader human rights and anti-discrimination bill, the bill that was abandoned by the Government earlier this year because it was acknowledged to have gone way too far. So we had, on this very tricky and important issue of discrimination against gay people, we had bipartisanship and unanimity. And then into the middle of this harmonious bipartisan moment, the Labor Party, out of the blue, threw in an amendment never anticipated, never expected, that would have caused the religious exemption issue to come into play. Now, if you want to build a consensus around this issue, that gay people should be protected from discrimination by the Sex Discrimination Act, then you would not have done that and the Labor Party, on all other grounds, in all other arenas, has said that it will respect the religious exemption. I am cynical about why the Labor Party did that…

TONY JONES: Okay, George.

GEORGE BRANDIS: …knowing that by introducing the religious exemption, it would make it impossible for that bipartisanship to continue.

TONY JONES: George Brandis, the questioner has his hand up so we’ll go back to you.

ALASTAIR LAWRIE: I would just like to pick up a point you seem to be making. In Senator Humphrey’s dissenting report to the sex discrimination senate inquiry, the two organisations that he quoted justifying the call for religious exception in that circumstance were the Australian Christian Lobby and the Catholic Women’s League. Neither of them provide religious aged care services. So in that circumstance, why are we trying to impose a religious exception to the detriment of older LGBT people for those groups that don’t actually run those services?

GEORGE BRANDIS: Well, I’m very familiar with that minority report because I was one of the signatories to it and I had a lot to do with drafting it. There were many more submissions to the inquiry from other churches and religious institutions than those two. So don’t infer that because those two were mentioned as a ‘For example’, those were the only ones, because they weren’t.

TONY JONES: Okay. George, I would like the hear other people on this subject. Anne Summers?

ANN SUMMERS: Well, I’m afraid I don’t know much about the legislation. I mean I just obviously would support the principle that LGBT people should be able to go to retirement homes and nursing homes free from any form of discrimination, which I take to be the central point and I know that, you know, one of the problems with homes that are run by some religions is they have been discriminatory in the past and I imagine what we are trying to avoid is the continuation of that discrimination and I would support that.

TONY JONES: Yeah, very briefly, George, before I go back to the other panelists, shouldn’t anti-discrimination be universal?

GEORGE BRANDIS: No.

TONY JONES: Why shouldn’t it?

GEORGE BRANDIS: Anti-discrimination laws should not be universal because the right to fair treatment is one of several very important but sometimes inconsistent values. The right of people who practice or profess a particular religious faith to live their lives and to conduct their institutions in accordance with the precepts of their religious faith is integral to religious freedom and religious freedom is also a fundamentally important value.

TONY JONES: So religious…

GEORGE BRANDIS: And if I may say…

TONY JONES: But just on principle, you are saying that religious freedom supersedes the freedom of your sexuality?

GEORGE BRANDIS: Yes, I am, as a matter of fact. Yes, I am. But I am also making a political point. There are – we in the Liberal Party have joined with people in the Labor Party to progress this agenda for years and those who wanted to see the Sex Discrimination Act extend to protect people on the grounds of their sexuality were furious that the Labor Party decided to throw in a curve ball into the debate that deprived the country of the opportunity for unanimity on this.

Sex Discrimination Amendment Bill 2013 – The Final Countdown

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There are now only two sitting weeks left before the upcoming federal election. Which means there are only 8 days during which Parliament can pass the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, historic legislation which would finally provide federal anti-discrimination protections to Australia’s lesbian, gay, bisexual, transgender and intersex community.

It goes without saying that this could go down to the wire. Which is why I sent the email posted below to all cross-bench MPs, as well as key figures in the Opposition and Greens (and a slightly re-worded version to the Government). I don’t think that we, as members of the LGBTI community, should ‘die wondering’ about this Bill. So, I would encourage you to consider sending you own emails to these parliamentarians, to help get the Sex Discrimination Amendment Bill 2013 over the line.

To help you on your way, I have included the email addresses of a range of relevant MPs at the end of this post. And please feel free to ‘borrow’ any and all of the following:

I am writing to you regarding the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

In particular, I am requesting that you:

  • Please support the Government’s proposed amendments which exclude the operation of religious exceptions in the area of aged care service provision; and
  • Please support the passage of the amended Sex Discrimination Amendment Bill 2013 in the final two sitting weeks of this Parliamentary term.

This Bill is a significant reform that will benefit the lesbian, gay, bisexual, transgender and intersex (LGBTI) citizens of Australia, because, if passed, it will be the first term LGBTI people will enjoy anti-discrimination protections under federal law.

It is historic because it will be the first time any federal anti-discrimination law, anywhere in the world, explicitly covers intersex people. And the Sex Discrimination Amendment Bill 2013 will also help to protect more people than some state and territory schemes – for example, the NSW Anti-Discrimination Act 1977 does not currently apply to bisexual or intersex people, both groups that are protected under this proposed law.

Unfortunately, the Bill as drafted will ensure that religious organisations are provided with wide-ranging exceptions from otherwise lawful obligations not to discriminate against lesbian, gay, bisexual and transgender people. This will allow religious organisations to continue to discriminate on the basis of sexual orientation and gender identity in employment and service provision, which will operate to undermine the scope and effectiveness of these anti-discrimination provisions. In principle, I do not support the operation of any religious exceptions outside the appointment of religious officials, membership of religious organisations and celebration of religious ceremonies.

However, I understand that LGBTI anti-discrimination legislation which did not contain any religious exceptions would be unlikely to pass the current Parliament. What is possible is for the Sex Discrimination Amendment Bill 2013 to be passed with amendments proposed by the Government that exclude the operation of religious exceptions in the area of aged care provision.

I strongly support the removal of religious exceptions in these circumstances. Older lesbian, gay, bisexual and transgender people should not be subjected to discrimination on the basis of sexual orientation or gender identity when they are accessing aged care services. This is particularly important when you consider that for many people, aged care facilities will be their home for long periods of their life – nobody deserves to be lawfully discriminated against in their home.

Above all, I see this as the very least which should be done for older lesbian, gay, bisexual and transgender Australians. These are people who grew up when homosexuality was still a criminal offence, who had to fight simply for the right to be who they are, who lost partners and friends through the devastation caused by HIV/AIDS, particularly in the 1980s and 1990s. These are people who deserve our respect, not the operation of provisions which could force them back into ‘the closet’ because of the fear of being discriminated against.

It is my sincere hope that all Parliamentarians will vote in favour of the Government’s amendments to exclude the operation of religious exceptions in the area of aged care services.

It is also my sincere hope that all Parliamentarians will unite and work together to ensure that the Sex Discrimination Amendment Bill 2013 is passed, as amended, in the final two sitting weeks of this Parliamentary term.

With Parliament rising on 27 June, there is only limited time to ensure this legislation is passed. Please help ensure that the Bill receives sufficient priority, through both Chambers, that it will finally be made law before the upcoming federal election.

I believe that the lesbian, gay, bisexual, transgender and intersex citizens of Australia, like myself, have waited long enough to be protected under federal anti-discrimination laws. I hope that you agree.

Attorney-General, The Hon Mark Dreyfus QC MP Mark.Dreyfus.MP@aph.gov.au

Mental Health and Ageing Minister, The Hon Mark Butler MP Mark.Butler.MP@aph.gov.au

Leader of the Opposition, the Hon Tony Abbott MP Tony.Abbott.MP@aph.gov.au

Shadow Attorney-General, Senator George Brandis senator.brandis@aph.gov.au

Greens Spokesperson for Attorney-General, Senator Penny Wright senator.wright@aph.gov.au

Greens Spokesperson for LGBTI issues, Senator Sarah Hanson-Young senator.hanson-young@aph.gov.au

Member for Kennedy, the Hon Bob Katter MP Bob.Katter.MP@aph.gov.au

Member for Fisher, the Hon Peter Slipper MP Peter.Slipper@aph.gov.au

Member for Dobell, Mr Craig Thomson MP Craig.Thomson.MP@aph.gov.au

Member for Lyne, Mr Rob Oakeshott MP Robert.Oakeshott.MP@aph.gov.au

Member for New England, Mr Tony Windsor MP Tony.Windsor.MP@aph.gov.au

Member for Denison, Mr Andrew Wilkie MP Andrew.Wilkie.MP@aph.gov.au

Member for O’Connor, Mr Tony Crook MP Tony.Crook.MP@aph.gov.au

Member for Melbourne, Mr Adam Bandt MP Adam.Bandt.MP@aph.gov.au

Senator for South Australia, Senator Nick Xenophon senator.xenophon@aph.gov.au

Senator for Victoria, Senator John Madigan senator.madigan@aph.gov.au

Sex Discrimination Amendment (LGBTI) Bill Senate Inquiry Submission

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Another week, another submission, this time to the Senate Legal & Constitutional Affairs Committee Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

Now that the Government has ‘deferred’ the Human Rights and Anti-Discrimination Bill/consolidation reforms, this Bill is the vehicle it has chosen to progress federal anti-discrimination protections for the lesbian, gay, bisexual, transgendernand intersex (LGBTI) community.

It is by no means a perfect Bill – at the very least it should incorporate the Government’s own policy of removing religious exceptions for people accessing aged care services. At best, it should remove all religious exceptions outside of the appointment of ministers of religion and religious ceremonies.

Nevertheless, this Bill, if passed, would be a significant step forward in terms of LGBTI law reform. If you have a chance to write your own submission before this Friday (26 April), I strongly encourage you to do so. Details here: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/sex_discrim_sexual_orientation/info.htm

NB I have also not included the appendix to this submission, because it is simply the discussion about religious exceptions from my submission on the HRAD Bill last year.

Senate Legal and Constitutional Affairs Committee

Inquiry into Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013

Submission by Alastair Lawrie

I am writing this submission to make three main recommendations:

i)                    That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which introduces federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians for the first time, should be supported.

ii)                   That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed as a matter of priority by the Commonwealth Parliament; and

iii)                 That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be amended to remove all religious exceptions which would otherwise allow discrimination against LGBTI Australians, outside of appointments of religious office-holders (such as priests) and religious ceremonies.

I was born in 1978. That is three years after the passage of the Racial Discrimination Act 1975. In the year I turned 6, the Commonwealth Parliament supported the Sex Discrimination Act 1984. The Disability Discrimination Act was passed in 1992, about three years before I first came out as gay at age 17. Even the most recent stand-alone Commonwealth anti-discrimination law, the Age Discrimination Act 2002, has already been in operation for more than a decade.

In 2013, I am 34 years old, and I have still never enjoyed the protection of federal anti-discrimination laws on the basis of my sexual orientation. Discrimination on the basis of race has been prohibited for my entire life, and on the basis of sex for almost as long. But up until now, successive Governments have not seen fit to legislate to prohibit discrimination on the basis of sexual orientation, gender identity and intersex status.

Which means that the reforms contained in the Labor Government’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 are both incredibly welcome, and long overdue. Lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians deserve the right to be employed, to access services, indeed to simply go about their everyday lives, without the threat of being discriminated against on these grounds.

If and when this Bill is eventually passed, it will be another key milestone on the long journey towards full equality for our LGBTI citizens. Which is why my first recommendation is that this legislation should be supported.

My second recommendation is that the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed by the Commonwealth Parliament as a matter of priority.

There are now only five Parliamentary sitting weeks left before the end of this term, ahead of the federal election which is currently expected to be held on September 14th. Having waited so long – decades, in fact – it would be a devastating blow to the LGBTI community were this legislation to be delayed yet again because the current Parliament simply ran out of time.

The future is always unknowable: it may be that, should these reforms not be passed now, a new Parliament or even Government introduces similar legislation later this year, or early next year. That would obviously be a welcome development. But it may also be that, after the upcoming election, LGBTI anti-discrimination reforms are delayed for several more years.

The current Bill fulfils the general objective of signalling that discrimination on the basis of sexual orientation, gender identity and intersex status is no longer tolerated, by society and by the Parliament. It is already drafted, and (leaving aside the amendments suggested in my third recommendation) it is ready to go.

That is why all serving Parliamentarians, from all political parties and independents, should pass the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 as soon as possible.

My third and final recommendation is that the Bill should be amended to ensure that religious exceptions from LGBTI-anti-discrimination requirements are narrowly drafted, only covering religious appointments, such as priests, and religious ceremonies.

The justification for this position involves my personal experience. Like many, indeed probably most, LGBTI Australians I have been discriminated against in a wide variety of different situations. I have been abused on the street, and threatened with violence, simply for holding my boyfriend’s hand. I have received sub-standard treatment from different service-providers simply because of my sexual orientation, or at least because of their perceptions of me.

I have likely been discriminated against in terms of employment, because I have always been upfront about who I am, including through my job applications. But I will probably never know for sure, because discrimination like homophobia is insidious, and its victims can never know all of the different ways in which they are mistreated.

But by far the activity in which I have been discriminated against the most was the education I received during the five years that I attended a religious boarding school. There was, from memory, a school rule against homosexuality, I was bullied on the basis of my (perceived) sexual orientation and this was effectively condoned by the school which was aware of it but failed to take any action, the sex education that was provided completely ignored homosexuality (including omitting essential safe sex/HIV-prevention messages), and I had a pastor intimate that killing yourself because you were gay was not the worst possible outcome.

It distresses me to think that, if religious organisations are granted wide-ranging exceptions under anti-discrimination laws, they will lawfully be able to (mis)treat future students in this way.

No student should be subject to prejudice, from their schools as well as from other students, because of their sexual orientation, gender identity or intersex status. No teacher should have to fear for their job simply because of who they are, or who they are attracted to.

This principle extends far and wide across a range of different activities. Patients receiving hospital and other health or community services should not have to consider whether disclosing their identity will compromise the standard of care they receive. LGBTI doctors, nurses and other employees in the health and community sector should be able to be confident in talking about who they are without fearing possible repercussions.

This principle obviously also includes aged care services. And I welcome the Labor Government’s commitment that they will legislate to protect people accessing aged care services from discrimination on the basis of sexual orientation, gender identity and intersex status.

However, I question why these protections are not included in the current Bill – the drafting of such provisions is not overly complicated, and I would like to believe that no Parliamentarian could argue, or vote, against such a basic proposition.

I also question why such protections should not equally apply to the employees of aged care services. If we are going to have truly inclusive aged care services, then neither the service recipients nor the employees should be subject to discrimination simply because they are LGBTI.

But, for the reasons outlined above, I do not believe that even ‘carving out’ the aged care sector from the operation of religious exceptions goes far enough. There is no justification for allowing religious organisations to discriminate against service recipients or employees in any activity which is carried on in the public sphere. For further discussion of this, please see Appendix A, which I provided to the Senate Inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 in December last year on this very topic.

In conclusion, I would like to thank the Committee for the opportunity to comment on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. As I have indicated, I think this Bill could be significantly improved by limiting the operation of religious exceptions which undermine protections that would otherwise cover LGBTI Australians.

However, even if these exceptions are not removed by the current Bill, the fact that some LGBTI anti-discrimination protections will finally be enacted federally is sufficient justification to recommend both that the Commonwealth Parliament support the Bill, and that it be passed as a matter of priority. The Australian LGBTI community has waited long enough for these reforms. It’s time to just get it done.