Tag Archives: LGBTI

No 1 Australia Sends LGBTI Refugees to Countries which Criminalise Homosexuality

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I wish that I could have finished this countdown with something more positive. Indeed, I was tempted to elevate the achievement of the Sex Discrimination Amendment Act 2013 to No 1, just so I could end on a high note.

Alas, Australia’s ongoing mistreatment of refugees, including the gross violation of their human rights, is simply too heinous to ignore, and too severe to downplay. And in 2013, these abuses reached a new low, with the then Rudd Government introducing, and the incoming Abbott Government retaining, a new policy to permanently resettle refugees who arrive by boat in Nauru and on Manus Island in Papua New Guinea.

More than just a fundamental breach of Australia’s international obligations, this policy is an attempt to permanently turn our backs to the humanity of people fleeing persecution in other countries, people who were seeking our compassion but, when they arrived, found none.

All of this is bad enough to attract the opprobrium of anyone interested in human rights, including LGBTI rights. But there is a special reason for LGBTI activists and advocates to oppose the resettlement of refugees in Nauru and Papua New Guinea – and that is that both countries continue to criminalise male homosexuality, by up to 14 years imprisonment.

While the letter of the law only applies to male homosexuality, any place which criminalises sex between people of the same-sex is not a safe environment to send refugees who are lesbian, gay, bisexual, transgender or intersex. The potential dangers of doing so were apparent when the then Gillard Government first announced that Nauru and Manus Island were to be re-opened as ‘offshore processing centres’ in mid-2012.

At the time I wrote to the Immigration Minister, Chris Bowen, asking him whether the Government supported the rights of LGBTI asylum-seekers, and whether they could guarantee that the laws criminalising homosexuality would not be applied to the people we sent there (original letter: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/). A similar letter was sent to then Opposition Immigration Spokesperson Scott Morrison.

It took almost ten months, and some harassment, for the Government to reply, and when they finally did, in June 2013, they did not answer the question – effectively conceding that the criminal laws of Nauru and Papua New Guinea do apply to LGBTI refugees we send there (response here: https://alastairlawrie.net/2013/06/30/lgbti-refugees-on-nauru-manus-island/).

In a sign of things to come, Mr Morrison never replied. All of which meant that I was completely unsurprised by the Amnesty International Report “This is Breaking People”, released on 11 December 2013, which spelled out just how awful the consequences of this policy are for LGBTI asylum seekers (report here: http://www.amnesty.org/en/library/asset/ASA12/002/2013/en/b2f135dc-3353-420d-b587-05d2b3db6e2f/asa120022013en.pdf see especially discussion on pages 73-75).

But just because I am unsurprised, does not mean I am not outraged – and you should be too. In short, gay refugees sent to Manus Island are:

  • Told that same-sex sexual activities are prohibited
  • Told that, if they engage in same-sex sexual activities, they will be reported to PNG Police (despite there being no legal onus for the operators to do so)
  • NOT provided with condoms (and with safe-sex education comprising a talk telling them not to have sex) and
  • Subject to bullying and harassment from other detainees on the basis of their sexual orientation.

In such circumstances, it is even less surprising that the senior Australian Government official at the camp, Renate Croker, said she was unaware of any person claiming asylum on the basis of persecution due to their LGBTI status.

Not only is this apparently incorrect – with Amnesty International interviewing several gay male asylum-seekers, including at least one quoted as saying he had made a claim on that basis – it also ignores the fact that people can be LGBTI but claim asylum because of persecution on other grounds (eg race, religion).

Indeed, one of the refugees interviewed claimed that other people have considered changing and/or changed their applications to be refer to other grounds, rather than be exposed to further bullying or harassment inside the camp, as well as to minimise the threat of being reported to PNG Police. He further “explained that some gay men have chosen to return to their home countries with IOM [International Organization for Migration]’s assistance, despite the risks they face upon return.”

All of which made the comments of Minister Morrison in response to the report all the more chilling. The following excerpt is taken from Oliver Laughland’s excellent article in the Guardian Australia on 13 December (titled Scott Morrison denies Amnesty report findings on Manus island detention):

Morrison said this [automatic reporting to PNG Police] was not the policy of the government but added all asylum seekers on Manus were provided with “clear advice” on “relevant laws” in Papua New Guinea. Homosexuality is illegal in PNG and can carry a 14-year sentence. Morrison was asked repeatedly by Guardian Australia if the “relevant laws” included those relating to homosexuality but he declined to go into detail, adding: “In these press conferences you get to ask the questions, you don’t get to give the responses as well.” Morrison added that the department was “unaware of any claims or declarations of homosexuality or of any reports of homosexuality being investigated by the police at the centre”. [full article here: http://www.theguardian.com/world/2013/dec/13/scott-morrison-denies-amnesty-report-findings-on-manus-island-detention).

In short, our current Immigration Minister has all-but confirmed that PNG laws criminalising homosexuality apply to LGBTI refugees sent there, as well as expressing a clear lack of understanding about the nature of sexual orientation, homophobia and the reasons why LGBTI refugees might not want to make a ‘declaration’, including but not limited to the risk of criminal punishment.

All-in-all, the situation confronting LGBTI refugees sent to Manus Island, and by extension, Nauru, is a nightmare. But it cannot be divorced from the broader nightmare that is Australia’s bipartisan ‘Pacific Solution Mark II’. The fact that we are sending any refugees to be processed, and permanently resettled, on Nauru and in PNG is a massive failure of our political system, and of the Australian people for allowing it to happen, for it to be done in our name.

Tragically, as 2013 draws to a close, it is unclear how any of this is going to change. I would like to be able to end this article, and this countdown, by saying something like “Here’s hoping in 2014 we take the first steps towards a humane refugee assessment system.” But the pessimist in me, reflecting on all of the events of the past 12 to 18 months, wants to say instead “Please just don’t let it become any worse”.

No 2 Australia Finally Adopts Federal Anti-Discrimination Protections for Lesbian, Gay, Bisexual, Transgender and Intersex People

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I have already written about the significance of this achievement (link: https://alastairlawrie.net/2013/06/30/federal-lgbti-anti-discrimination-protections-at-last/), so I won’t go into a lot of new detail here.

Still, as far as highlights of 2013 go, it would be pretty difficult to overlook the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act in June. From 1 August, LGBTI people in Australia finally had anti-discrimination protections under federal law. And we only had to wait 38 years after the Racial Discrimination Act, and 29 years since the original Sex Discrimination Act (and yes, that was sarcastic – the passage of this Bill was long, long overdue).

There were two particular aspects of the Sex Discrimination Amendment Act that warrant particular celebration. First, it is the first anti-discrimination law passed anywhere in the world to explicitly include intersex people. That is a pretty amazing achievement, and another testament to the great work and advocacy by OII Australia and other groups.

Second, the legislation includes an amendment that means aged care service providers operated by religious organisations are not legally allowed to discriminate against LGBTI people accessing their services. Again, this is a significant victory, and will help to ensure the generation of LGBTI people who fought so hard – and successfully – for our civil rights, have the opportunity to grow old with dignity.

Nevertheless, the fact that a special ‘carve-out’ is necessary for aged care service delivery by religious organisations emphasises the major weakness of the anti-discrimination protections that were passed: schools, hospitals and other community service organisations that are run by religious groups are legally allowed to discriminate against lesbian, gay, bisexual and transgender people, both employees and service recipients (NB religious organisations do not have exceptions allowing them to discriminate against intersex people).

These religious exemptions or exceptions are contrary to the fundamental concept of anti-discrimination law – that people should not be discriminated against for things that are irrelevant to their capacity to perform a job, or their right to access a service.

Fighting to remove these religious exceptions will be the biggest test for LGBTI advocates and activists over the next 5, 10 or even15 years (achieving marriage equality will likely turn out to be both easier, and quicker, than removing religious exceptions, and religious organisations will probably fight much harder to retain them than to retain a discriminatory Marriage Act).

Still, fight them we must, because for however long a religious school can sack a teacher for being gay or bisexual, or a service organisation can refuse to provide that service because the intended recipient is transgender, then we are not truly equal.

As an indication of how difficult this fight will be, I am re-posting the exchange between myself, now Attorney-General George Brandis and Tony Jones on #QandA back in June, the night before the legislation, including the aged care carve-out, was passed (and, no this is not just – well, not entirely – because I had so much fun doing this):

ALASTAIR LAWRIE: My question is to Senator Brandis. Last Tuesday you announced that the Coalition would block any LGBTI 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. [emphasis added].

 

That exchange, and especially Senator Brandis’ statement that religious freedoms clearly trump our right to not be discriminated against, show just how hard this battle will be.

Underscoring this point is Attorney-General Brandis’ recent appointment of Tim Wilson as a new Human Rights Commissioner, responsible for promoting ‘traditional freedoms’. Recruited from the right-wing Institute of Public Affairs, on 23 January this year Mr Wilson appeared at a Senate hearing into the then draft Human Rights and Anti-Discrimination Bill (transcript here: http://parlinfo.aph.gov.au/parlInfo/download/committees/commsen/8eb3bdec-c603-4d2d-9564-674c7bd7b5c2/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2013_01_23_1612_Official.pdf;fileType=application%2Fpdf#search=%22committees/commsen/8eb3bdec-c603-4d2d-9564-674c7bd7b5c2/0000%22).

During his testimony, he argued that anti-discrimination protections should only apply to government employees and services – basically, that anti-discrimination law should not protect people from being fired for being gay, or being expelled for being a lesbian, or being denied a service for being bisexual, transgender or intersex. Given the extremity of these views, if this is any indication of how Attorney-General Brandis will approach anti-discrimination reforms then we will need to be prepared to fight any moves to wind back our hard-won protections in 2014.

In the meantime, the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 will stand as the most significant LGBTI victory of the past 12 months. Thank you to the former Labor Government, then Attorney-General Mark Dreyfus, Senators Penny Wong and Louise Pratt and everyone else who helped to make this happen.

No 3 Senate Report on Involuntary or Coerced Sterilisation of Intersex People in Australia

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Another development during 2013 which was, frankly, far more important than anything related to marriage equality was the Senate Standing Committee on Community Affairs’ Report on Involuntary or Coerced Sterilisation of Intersex People in Australia, handed down on 25 October (link here: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx).

For people unaware (as, being perfectly honest, I was until around this time last year), the vast majority of intersex children are subjected to involuntary surgeries shortly after birth, designed to ‘normalise’ them according to the expectations of either their parents, their doctors, or society at large (or, more likely, a combination of all three) that they should conform to a man/woman binary model of sex.

These surgeries, obviously performed without the infant/child’s consent, can involve sterilisation, as well as other ‘cosmetic’ (ie unnecessary), largely irreversible surgery on genitalia to make it fit within the idea of what a man or woman ‘should’ be (completely ignoring the fact that the infant doesn’t fit into that model, nor should that model be imposed upon them, and certainly not without their informed consent).

The fact that these surgeries continue to the present day is a major human rights scandal. The idea that people are having such major, lifelong decisions made for them by doctors and parents (who are often persuaded by the views of the medical profession) is a horrifying one.

It is something that groups like Organisation Intersex International Australia (OII Australia), and others have been campaigning on for some time. And in 2013 the members of the Senate Standing Committee on Community Affairs were listening.

They commenced an inquiry on September 20 2012, looking at the general topic of involuntary or coerced sterilisation of people with disabilities in Australia. Through the course of this inquiry, and the advocacy of groups like OII Australia, they came to see the significance of the continuing violation of the rights, including the bodily integrity, of young intersex people.

So much so, that they separated out the issues surrounding intersex people and, after handing down their general report on 17 July 2013, devoted a second report entirely to these issues. In their conclusion, they made some very encouraging observations about the need to break down the barriers of thinking around sex. In particular, they noted:

“ 6.29      Least well understood is the challenge that intersex variation presents to the rest of society. It is the challenge involved in recognising that genetic diversity is not a problem in itself; that we should not try to ‘normalise’ people who look different, if there is no medical necessity. It is the challenge of understanding that everyone does not have to fit into fixed binary models of sex and gender, and that nature certainly does not do so.

6.30      A key example of our lack of understanding of how to respond to intersex diversity can be seen in the clinical research on sex and gender of intersex people. The medical understanding of intersex is so strongly focussed on binary sex and gender that, even though its subjects have some sort of sex or gender ambiguity, the committee is unaware of any evidence to show that there are poor clinical or social outcomes from not assigning a sex to intersex infants.[19] Why? Because it appears never to have even been considered or researched. Enormous effort has gone into assigning and ‘normalising’ sex: none has gone into asking whether this is necessary or beneficial. Given the extremely complex and risky medical treatments that are sometimes involved, this appears extremely unfortunate. [emphasis added]”

 

Which is a pretty radical sentiment for a cross-party group of Senators to put their names to. The Committee also made recommendations designed to at least reduce the incidence of coerced sterilization (and surgery on genitalia), as well as increasing the support available to parents of intersex children. Specifically:

“3.130    The committee recommends that all medical treatment of intersex people take place under guidelines that ensure treatment is managed by multidisciplinary teams within a human rights framework. The guidelines should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons. [emphasis added]

 

Recommendation 11

5.70    The committee recommends that the provision of information about intersex support groups to both parents/families and the patient be a mandatory part of the health care management of intersex cases.

Recommendation 12

5.72    The committee recommends that intersex support groups be core funded to provide support and information to patients, parents, families and health professionals in all intersex cases.”

These recommendations, and the Report more broadly, have been received positively by the National LGBTI Health Alliance, and by OII Australia, who released a statement responding to the report on 29 October (link here: http://oii.org.au/24058/statement-senate-report-involuntary-or-coerced-sterilisation-intersex-people/). OII President Morgan Carpenter said:

“This report represents the first opportunity, after many years of campaigning, to place our most serious human rights concerns before Parliament. Medical interventions on intersex infants, children and adolescents have been taking place in Australia with insufficient medical evidence, and insufficient emphasis placed on the human rights of the child and future adult. Genital surgeries and sterilisations create lifelong patients and there’s significant evidence of trauma.

At a first view, many of the headline conclusions and recommendations are positive – accepting our recommendations on minimising genital surgery, concern over the lack of adequate data, insufficient psychosocial support, and concern that decision making on cancer risk is insufficiently disentangled from wider concerns about a person’s intersex status itself; we also broadly welcome the recommendations relating to the prenatal use of Dexamethasone” and, went on to say:

 

“OII Australia warmly welcomes this crucial report. It addresses the main concerns of the intersex community. We welcome that this is a joint report with cross-party support, and we would like to thank the Committee members and staff for their hard work.

We also give particular thanks to our friends in the Androgen Insensitivity Syndrome Support Group Australia (AISSGA), the National LGBTI Health Alliance, and the other people and organisations who took time to make relevant submissions to the inquiry, or who participated in the hearing on intersex issues.

We look forward to working with clinicians, Commonwealth and State and Territory Health Departments, and the Commonwealth Attorney General’s Department, to improve health outcomes for intersex infants, children, adolescents and adults.”

Which is I guess the crucial point – it is up to multiple levels of Government, and the health profession, to implement the Committee’s recommendations, and make substantial (and long overdue) improvements in this area. And it is up to groups like OII Australia – together with support from their allies throughout the LGBTI, and wider, community – to make sure that they do.

No 4 Draft Health & Physical Education Curriculum Fails LGBTI Students

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For people who read my blog regularly, you will know that this is something I have written a fair bit about over the past 12 months. For others, you could be forgiven for asking what exactly I am talking about. Which is a fair enough question, given this subject has almost completely evaded media attention, even within the LGBTI community.

In December 2012, the Australian Curriculum, Assessment and Reporting Authority (ACARA) released a draft national Health & Physical Education (HPE) curriculum for public consultation. Submissions closed in April this year, before a second draft was released for limited public consultation in July 2013.

ACARA then finalised the draft curriculum from August to November, before submitting it for approval at the COAG Standing Council on School Education and Early Childhood (SCSEEC) meeting in in Sydney on 29 November.

Through this process, it became clear that the draft HPE curriculum that had been developed would almost completely fail to serve the needs of young LGBTI people right around Australia. Neither the first nor the second draft curriculum even included the words gay, lesbian or bisexual, and, while the second included transgender and intersex, it only did so in the glossary and even then erroneously included them within the same definition.

Nor did the draft HPE curriculum guarantee that all students, LGBTI and non-LGBTI alike, would learn the necessary sexual health education to allow them to make informed choices. Almost unbelievably, COAG Education Ministers were asked to approve a Health & Physical Education curriculum that did not even include the term HIV (or other BBVs like viral hepatitis for that matter), just two days before World AIDS Day.

For more information on just how bad the draft HPE curriculums were, here is my submission to the first draft: https://alastairlawrie.net/2013/04/11/submission-on-national-health-physical-education-curriculum/ and second draft: https://alastairlawrie.net/2013/07/30/submission-on-redrafted-national-health-physical-education-curriculum/

Given the fact the draft HPE curriculums so comprehensively failed to include LGBTI students, let alone content that was relevant to their needs, why didn’t this issue receive more attention, both from the media, and more specifically from LGBTI activists and advocates?

Well, there are lots of reasons – including but not limited to the inability of something as complicated as a school curriculum to compete with the much more emotive, yes/no, good/evil, photogenic juggernaut that is marriage equality.

But simply writing it off in that way is too simple – and lets us off the hook, free from our own responsibility for this failure. Because, if the exclusion of LGBTI students and content from the HPE curriculum was not a public issue, it is because we, as LGBTI activists and advocates, did not make it one.

In which case, I would like to sincerely apologise to future generations of young LGBTI people, who we failed over the past 12 months. If the HPE curriculum that is ultimately adopted resembles anything like its draft form, then we simply did not do enough to ensure that you received the education that you deserve.

Of course, I should not be alone in making such an apology – there are many other people, and organisations, who could and should have done more in this area throughout the course of 2013. Nor should we let off the hook the Education Ministers, both Labor and Liberal, who oversaw the development of the HPE curriculum, including Peter Garrett and Bill Shorten who were Education Minister when the two drafts were released, respectively.

There is however, a small glimmer of hope, and an opportunity to make things better, in the HPE curriculum and therefore for LGBTI students over the next 10 to 15 years. That is because new Commonwealth Education Minister Christopher Pyne has commenced a review of both ACARA, and of the curriculum development process more generally.

While overall that is probably not a positive development, it did mean that the HPE curriculum was not actually agreed at the 29 November meeting, but was instead simply ‘noted’. In short, there is still time to try to convince Minister Pyne, and any or all of this state and territory counterparts (Labor, Liberal and Green), that the draft HPE curriculum is not good enough when it comes to providing essential health education to LGBTI students.

Unfortunately, doing so would require the concerted effort of LGBTI people and organisations from around the country. Based on all the evidence of the past 12 months, I am not especially hopeful. Still, I can hope to be proven wrong.

UPDATE January 11 2014: As of yesterday, the small glimmer of hope that might have existed is no more. The Commonwealth Education Minister, Christopher Pyne, has appointed Kevin Donnelly as one of two men to review the curriculum. Unfortunately, Mr Donnelly is on record as making numerous homophobic comments in the past, including advocating for the rights of religious schools to discriminate against LGBTI students and staff. If anything, there is now a grave danger that the final Health & Physical Education curriculum will be significantly worse than the already poor versions released publicly in December 2012 and July 2013. How depressing for us – and how dangerous for the health and safety of the next generation of LGBTI students and young people.

No 5 Homosexuality Still Criminal in 77 Countries

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The past four posts have looked at one issue (marriage equality, both domestically and around the world) and gay rights in two specific countries, Russia and India.

The subject matter of each of these four posts has received significant media coverage – for some pretty obvious reasons. Same-sex couples seeking the right to marry provide both a ‘human interest’ story, and usually some compelling images to accompany it. Putin’s crackdown on LGBTI Russians has inevitably received widespread attention, particularly in the lead-up to the Winter Olympics. And it is pretty hard to ignore the re-criminalisation of homosexuality in a country with more than 1.2 billion people.

But, comparatively, it has been much easier for the media to ignore the ongoing criminalisation of homosexuality in 77 countries across the world (including India after the recent Supreme Court decision, but excluding Russia where, despite the anti-propaganda law homosexuality itself remains legal).

To put that figure into perspective, that is five times the number of countries that have full marriage equality (or more than four times the number of countries including those where some parts have adopted marriage equality, like the United States). So, while some parts of Europe and North and South America (together with South Africa and New Zealand), push forwards towards full equality, more than a third of countries around the world still treat homosexuality as a criminal offence.

This includes 38 countries in Africa, while 41 countries come from the Commonwealth (which is pretty extraordinary when you consider there are only 53 member states in total).

Tragically, the are five countries – Iran, Mauritania, Saudi Arabia, Sudan and Yemen – where homosexuality attracts the death penalty, while capital punishment also applies in parts of Nigeria and Somalia.

Which is a scandalous state of affairs, and something that the media – including but not limited to the LGBTI media – should report, and reflect, more on.

There have been some encouraging recent signs – in terms of coverage, if not subject matter. Over the past week, moves to increase criminal penalties in Uganda and Nigeria have attracted attention globally. The murder of Eric Ohena Lembembe in Cameroon mid-year was also covered, as have, periodically, anti-gay developments in Zimbabwe, Iran and elsewhere.

What has also been encouraging during 2013 has been the debate, within the Australian LGBTI community, about the need for advocacy for global LGBTI rights. Sparked in part by the situation in Russia, there has finally been a discussion about the relative priority we give something like marriage equality, compared to decriminalisation around the globe.

After all, while we are fighting for the right to walk down the aisle, our LGBTI comrades elsewhere are fighting simply for the right to exist. I’m not suggesting that we have those priorities right – in fact far from it. But I get the feeling that we are closer to achieving a better balance at the end of 2013 than at the beginning.

Some of the organisations that have helped to promote the global push for decriminalisation include the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA: http://ilga.org), AllOut (https://www.allout.org), the Kaleidoscope Trust (http://kaleidoscopetrust.com), and of course Amnesty International (a link to the NSW LGBTQI Network here: http://www.amnesty.org.au/nsw/group/12065/). I would encourage you to support any or all of them.

One final point I would like to make is that there are things that the Australian Government can and should be doing with respect to this issue, not just raising it (diplomatically, in all senses of the word) through international forums and bilaterally, but also by providing aid to global campaigns for sexual orientation, gender identity and intersex status equality.

One special burden which falls upon Australia is its own responsibility for the criminal laws which still exist in our former ‘colony’, Papua New Guinea, which were in place before Independence in September 1975. Because of that fact, it is imperative that the Australian Government – and the Australian LGBTI population generally – helps to encourage moves in our closest neighbour to decriminalise homosexuality. Hopefully that day, not just in PNG but right across the South Pacific, is not too far away.

No 6 India’s Supreme Court Re-criminalises Homosexuality

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One of the more disappointing developments of the year was also one of the last in terms of LGBTI rights. On 11 December, India’s Supreme Court effectively re-criminalised homosexuality in the world’s second most-populous nation.

They did so by overturning the Delhi High Court’s July 2 2009 decision in Naz Foundation v Govt of NCT of Delhi, which had found that section 377 of India’s penal code was unconstitutional in so far as it applied to sex, including gay sex, between consenting adults.

While the Supreme Court did find that section 377 was discriminatory and that gay sex between consenting adults should not be criminal, it nonetheless decided that the matter is one for Parliament to resolve, rather than the Courts, and consequently ‘revived’ the application of section 377 to homosexuality.

For its part, the Indian Government has expressed its disappointment with the Supreme Court’s decision. Sonia Gandhi, president of the ruling Congress Party, described section 377 as “an archaic, unjust law”, while Finance Minister P Chidambaram is reported as saying that the ruling had taken India “back to 1860” (the year the law was first introduced).

In the past 24 hours, the Indian Government has filed a petition in the Supreme Court asking it to review its decision to reinstate section 377, on the basis that it “violate[s] the principle of equality.”

The Law Minister, Kapil Sibal, has tweeted that “[t]he government has filed the review petition on Section 377 in the Supreme Court today. Let’s hope the right to personal choices is preserved”.

What they haven’t done is commit to introducing legislation to overturn section 377 themselves, instead preferring to hand it back to the judicial branch of government to resolve. Which means that, for however long the petition takes to resolve, consensual sex between same-sex attracted adults will remain a crime in India (after the all-too-brief 4 and a half year era of decriminalisation).

The decision not to legislate at this stage is obviously a tactical one. A national election is due before 31 May 2014, and with the opposition Bharatiya Janata Party (BJP) adopting a more hard-line conservative position in response to the decision, there is the potential for them to use the issue as a pre-election wedge.

However, if the BJP and its Coalition parties do form government next year then, as well as making it unlikely that legislation to decriminalise homosexuality will be passed by parliament, it will also throw the status of the current Government’s petition to the Supreme Court (assuming it hasn’t been heard) into doubt.

In short, the situation is a bit of a mess.

But, before we judge too harshly the efforts to date of India’s Parliament on this issue, including those of the Congress Party-led Government, it is important to remember where the original blame for section 377 lies.

After all, we are expecting the current Indian political (and judicial) system to clean up the mess left by the British imperial Government of the 19th century. Just like other European ‘colonial’ powers, the British left a legacy of legal – and cultural – homophobia in its wake.

In fact, the British were especially talented at spreading homophobia around the world. More than half of all countries where homosexuality is illegal in 2013 are current members of the Commonwealth of Nations (more on that topic in the next post).

Indeed, the actions of the British Empire during the 19th and 20th centuries place a special burden on the United Kingdom (as well as Canada, Australia and New Zealand) to do whatever they can to assist fellow Commonwealth countries along the path towards decriminalisation.

Nevertheless, despite the original blame for section 377 lying elsewhere, the people with the power to finally abolish it are in India – either on the judicial, or parliamentary, benches. Here’s hoping they find the courage to do so shortly, and allow millions of LGBTI people to return to living their lives free from the threat of prosecution, or police intimidation.

No 7 Russia’s Anti-Gay Crackdown

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What is happening in Russia is horrible. The introduction of Putin’s laws, making so-called ‘gay propaganda’ illegal, is obviously a significant blow to both the country’s LGBTI population and to any concept of Russian democracy.

It is made worse because the laws are not some idle threat – they are being actively enforced against brave protesters who have the temerity to stand up and say that “To be gay and to love gays is normal. To beat gays and kill gays is criminal” as Dmitry Isakov did (just this week Dmitry was fined 4000 roubles for doing so, the third Russian to be prosecuted under the laws after Nikolai Alexeyev and Yaroslav Yevtushenko).

But, if it were ‘just’ these laws (and yes, I know that it is almost impossible to use the word ‘just’ in this context), then what is going on in Russia would probably not stand out in a world where homosexuality remains criminal in 77 countries (and where, despite these laws, Russia still does not technically criminalise homosexuality).

However, the sad reality is that the laws criminalising gay propaganda seem to be just the start. They have been accompanied by a wave of homophobia affecting many aspects of Russian society.

Legally, a threat hangs over rainbow families that their children will be taken away from them (as an Australian, the idea of children being stolen because of their parents’ social group is especially poignant).

There have also been widespread acts of physical violence and intimidation against LGBTI Russians, including numerous hate crimes and, tragically, murders. Gay clubs have been attacked, with bullets and with fire.

And the cultural debate has degenerated to the point that a Russian actor, Ivan Okhlobystin, can say that “I would have them [gays] all stuffed alive inside an oven. This is Sodom and Gomorrah, as a believer, I can not remain indifferent to this, it is a living danger to my children!” – and be applauded.

It is not just that last comment which has made many people think back 80 years to political developments to the West of Russia, in Italy and, especially, Germany. While I do not throw the word fascist around lightly (and we are, thankfully, still some distance away from the worst of Hitler’s regime), the scapegoating of a minority group in the way Russia is doing now certainly brings fascism to mind.

Part of what makes this a difficult subject to write about is that, as an Australian LGBTI activist, it is hard to work out what the best response is. So hard, in fact, that it is almost tempting to forgive the initial ‘kneejerk’ reaction of some people who indicated their disgust at the actions of Putin & co by boycotting Russian vodka (‘vodka revolution’ anyone?).

Others have concentrated their advocacy around the upcoming Winter Olympics, to be held in Sochi from February 7 to 23. While most calls to boycott seem to have died down (it was always going to be an unlikely outcome, especially in the apparent absence of a united position from Russian LGBTI groups calling on us to do so), there will be other ways to draw attention to the state-sponsored homophobia of Putin’s Russia during that fortnight.

In particular, the campaign by @allout and Athlete Ally, focusing on Principle 6 of the Olympic Charter (which states that any form of discrimination is incompatible with the Olympics), seems like a sensible way to go about it (especially because it allows athletes to take a political stand without falling foul of the Olympics rules against ‘politicising’ sports).

But the problem, with this and other campaigns, will come in the days and weeks after the closing ceremony, when the spotlight of the world’s media turns elsewhere. Because it will be very easy for the Russian Government to ensure that nothing negative happens for a couple of weeks, especially to the athletes, tourists and reporters converging on Sochi.

It is far more important to focus on what is happening to Russia’s LGBTI population now, in the days leading up Sochi, what happens elsewhere in Russia during the Games, and what will happen in the months and years that follow.

We must make sure that we don’t avert our gaze just because the global media caravan moves on. We must continue to pressure our own Governments to take action on this issue, raising it with their Russian counterparts. And, above all, we must continue to communicate with Russian LGBTI groups to learn from them what we can do to help them in their fight.

No 8 Marriage Equality Marches on Around the World

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In contrast to the lack of sustained progress in Australia, internationally marriage equality continued its onwards march in 2013. In fact, we end the year with approximately 10% of the world’s population now living in jurisdictions where same-sex couples are able to get married.

That seemed like an impossible goal five years ago, let alone way back in 2001 when the Netherlands had the somewhat radical (but in reality also rather conservative) idea that all couples should be allowed to wed, irrespective of their sexual orientation, gender identity or intersex status.

In 2013, marriage equality became a reality for couples in Brazil (16 May), France (18 May), Uruguay (5 August) and New Zealand (19 August). Which means 15 countries now treat all of their couples equally. It should also be noted that England and Wales also passed marriage equality during the year, although it won’t commence until March 29 2014 (NB Given Scotland has yet to pass marriage equality, and it looks unlikely to pass Northern Ireland, I do not include the United Kingdom in the number of countries with full equality).

There was just as much progress in the United States – both through the courts, and through legislatures around the country.

First, to the two momentous decisions of the US Supreme Court, both handed down on 26 June. In one, plaintiff Edith Windsor (a phenomenal woman, and deserved nominee for Time Person of the Year) was successful in her case that the Defense of Marriage Act, passed by Congress and signed by then President Bill Clinton back in 1996, was in fact unconstitutional.

The Court declared DOMA to be “a deprivation of the liberty of the person protected by the Fifth Amendment”. The consequence of this decision is that the US Federal Government is compelled to recognise the validity, and entitlements, of couples who are married under various state laws providing marriage equality around the country.

In the second decision, the Supreme Court struck down California’s Proposition 8 from 2008, a ballot initiative which had outlawed same-sex marriages just five months after they commenced in June of that year. The Supreme Court, in Hollingsworth v Perry found that the appeal, by people seeking to uphold the marriage ban, did not have standing meaning that a lower court ruling, reinstating marriage equality, stood. Californian same-sex marriages resumed shortly after this decision.

Probably more important has been the ongoing moves to introduce marriage equality through state legislatures. The year started with marriage equality taking effect in Maryland on 1 January, and it was followed by Delaware (1 July), Minnesota (1 August), Rhode Island (1 August), New Jersey (21 October – although this was largely the result of a state court case, after the Governor had previously vetoed marriage equality legislation), and Hawaii (2 December), with Illinois to commence formally on 1 June next year (although couples where a partner has a serious illness can marry now).

This is remarkable progress – and underscores just how conservative Australia is by comparison. After all, if roughly one third of US states (plus DC) have already introduced marriage equality, and with progress in Australia looking several more years away, we have well and truly cemented our place as the backwater of the Anglo-sphere on this issue.

In fact, Australia, with last week’s High Court decision overturning the ACT’s same-sex marriage laws, has provided one of the few ‘lowlights’ of the global marriage equality movement. The other that springs immediately to mind was the recent referendum in Croatia which, by a margin of 65% to 35%, voted to enshrine the definition of marriage as “a living union of a woman and a man” in that country’s constitution. Shame.

Leaving Australia and Croatia aside, though, the prospects for continued global progress on marriage equality look assured. It is highly likely that Scotland will pass equality early next year, and, after its elections this week, there is a good chance of Chile following suit (which would make it the fourth South American country to do so). I am sure that other countries, and more US states, will also take the plunge in the next 12 months.

Which leaves LGBTI-inclusive couples in Australia with a helluva lot more choices in overseas places where they can get married. Which is all very nice and well, but what we really want is the ability to marry at home, in front of our family and friends. Til then, we will continue to fall further and further behind the rest of the world.

I was going to end there but, contrary to my usual nature, I will instead sign off with my personal highlight of global marriage equality in 2013 – and that was the moment that marriage equality passed across the Tasman, and in particular the singing of a traditional Maori love song immediately afterwards. I challenge you to watch this and not get chills down your spine: http://www.youtube.com/watch?v=q9pOJ8Bc_-g

UPDATE: Just 3 days after I posted this, and two more US states have legalised same-sex marriage – New Mexico and Utah – bringing the total number to 18 (plus DC). With this rate of progress it is becoming increasingly difficult to keep track of developments, which, as an LGBTI activist, is a wonderful (and somewhat novel), problem to have. May it continue into 2014.

No 9 Still No Marriage Equality in Australia

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This is an issue where there were a number of different highs – and lows – over the course of the past 12 months. Given my naturally glass half empty personality, we’ll start with the lows.

The most obvious ‘low’ was the High Court’s ruling last Thursday (12 December), overturning the ACT’s same-sex marriage laws as unconstitutional, after just five days of operation, as well as annulling the marriages of all the couples who had taken the opportunity to tie the knot under the law.

One can only imagine how awful the past few days would have been for these couples, experiencing the elation of being married, at long last, to the frustration of having that status ripped from their grasp just days later.

In fact, 2013 was not a good year for the idea of state and territory same-sex marriage laws generally. State-based marriage was defeated, narrowly, in votes the Tasmanian upper house (after passing the lower house, yet again), and by one vote in the NSW upper house (although it was likely headed for defeat in the lower house there). A similar Bill was defeated by a much larger margin in South Australian Parliament.

Now, it seems the High Court has ruled out the option of state-based marriage permanently (at least as far as they are close enough to marriage under the Commonwealth Marriage Act to deserve the title ‘marriage’).

And the Federal Election was also not a good one as far as marriage equality was concerned. A Prime Minister who supported marriage equality, leading a party the majority of whose MPs had voted yes just 12 months earlier, was replaced by a Prime Minister who remains staunchly opposed to equality (even that of his own sister), leading a Liberal-National Coalition of whom exactly ZERO MPs voted yes in September 2012.

Overall, then, there was a lot of bad news to spread around. But 2013 was not universally negative for marriage equality in Australia.

The same High Court decision that overturned the ACT’s same-sex marriage laws also included a key finding – that the Federal Parliament unambiguously has the power to introduce marriage equality.

That might sound, to some, as merely a small win, but it actually takes one of the main arguments against marriage equality in the Commonwealth arena off the table (namely that s51xxi of the constitution – aka the ‘marriage power’ – could only mean marriage of opposite-sex couples).

In what turned out to be a quite progressive judgment (despite the outcome), the Justices wrote:

“”marriage” is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.”  Link to full judgment here: http://www.austlii.edu.au/au/cases/cth/high_ct/2013/55.html

In short, marriage can be the union of two people (or more, if the Parliament so chooses) irrespective of their sexual orientation, gender identity or intersex status. That is a statement of what is ‘possible’. It is up to our parliamentarians to make it real.

Another ‘high’ was that those couples in the ACT were able to marry in the first place. The fact that, for five full days, newspapers and TV stations around the country carried pictures of happy couples getting married, where the only difference was that their spouse was the same sex as themselves, can only be of cementing victory in the long war of acceptance.

Same-sex couples were married, the sky didn’t fall, nobody else’s marriage was diminished and, for the benefit of people like Senator Bernardi, no pets were interfered with either.

Another glimmer of hope is that the Liberal Party’s position was slightly better at the 2013 election than it was at the 2010 one. While previously the Liberals and Nationals were universally committed to voting no on marriage equality, prior to September 7 they adopted the line that whether there was a conscience vote would be “a matter for the post-election Coalition party-room”.

Given Tony Abbott’s strong opposition, there is no guarantee of a conscience vote happening, but the door is at least slightly ajar – it is now up to people like Malcolm Turnbull to force it open.

Another door that is slightly ajar is the possibility of the 2014 ALP National Conference adopting a binding vote in favour of marriage equality. Something that should have happened in 2011, when the platform was changed, were it not for the homophobic position adopted by then Prime Minister Julia Gillard, is a live option because of recent remarks by AWU National Secretary Paul Howes, who conceded that he had been wrong to support a conscience vote back then.

With Howes’ crucial support, and another three years of time elapsed, there might, just might, be enough support from conference delegates to impose a binding vote on Parliamentary members of the Labor Party. And that is definitely something worth fighting for. Because, mathematically, we may well need a conscience vote from the Coalition, and a binding vote from Labor, for any marriage equality Bill to pass the Commonwealth Parliament, at least this term anyway.

The formation, last week, of a cross-party group to work towards marriage equality in the Parliament, drawing members from the Coalition (Sue Boyce), ALP (Louise Pratt) and Greens (Sarah Hanson-Young), will also likely be remembered as a key step along the road to equality.

The final ‘high’ from 2013 is something which now probably doesn’t hold a lot of sway, but which was a powerful statement of intent at the time: then Prime Minister Kevin Rudd’s ‘Bartlet’ moment on the ABC’s Q&A. (http://www.youtube.com/watch?v=CdU3ooAZSH8)

When asked by a Christian pastor how, as a Christian, Rudd could support marriage equality when the Bible commands him to believe differently, Rudd rebuked him with a smackdown that was brilliant both in its argument and in its eloquence. It was Rudd at his best – and, watching it three months later, it still brings a smile to my face.

Even if it was only for a few fleeting months, we finally had a Prime Minister join the majority of the Australian population in the 21st century in believing that all couples must be treated equally.

How much longer we have to wait for that community belief to be reflected in the statute books will depend a lot on what happens in 2014, inside the Coalition Party-room and at ALP National Conference. I guess it’s time to prepare to protest once more.

No 10 The Federal Election on September 7

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This would possibly have been higher on the list, were it not for the fact the outcome was pretty much inevitable, long before polling day (and certainly by the time I finished working at Parliament House in mid-2012).

But the September 7 election was still a significant moment, because it drew the final curtain on the Rudd & Gillard (& Rudd again) Labor Government that, in less than 6 years, achieved more for LGBTI rights than any other federal Government in history.

Perhaps we, as a community, took some of those achievements for granted. Perhaps, because many of those reforms were so long overdue (case in point: de facto relationship recognition) that they didn’t feel like achievements at all, instead they were simply the actions of a Parliament finally catching up to where the population already was.

More likely, for many of the LGBTI people of Australia, the achievements of the Labor Government were overshadowed by one major law reform which they didn’t implement. As someone who is engaged to be married myself, I understand that frustration (and I would add another couple of major policy failures as well – but more on them later in this countdown).

Nevertheless, the fact that the Rudd/Gillard/Rudd Government did not introduce marriage equality should not mean that we completely disregard their achievements in other areas. After all, they accomplished infinitely more in a little over 5 and a half years than the Howard Government did in twice that time (to be honest, the only positive Howard Government LGBTI achievement I can think of was allowing same-sex couples access to their partner’s superannuation, but even that wasn’t mandated, didn’t cover Commonwealth public sector employees, and was only passed as a trade-off when they introduced the marriage ban in 2004).

The positive list of Labor achievements between 2007 and 2013 includes:

  • De facto relationship recognition (and access to the Family Court on relationship breakdown)
  • The inclusion of sexual orientation, gender identity and intersex status in federal anti-discrimination legislation for the first time (again, more on that later in the countdown)
  • Another first, this time the first National LGBTI Ageing and Aged Care Strategy
  • Providing funding for the National LGBTI Health Alliance for mental health projects
  • Providing funding for QLife, the national network of LGBTI telephone counselling services, to allow a 1800 number to be operational across the country 7 nights a week (the importance of which really shouldn’t be underestimated)
  • Introducing trans* and intersex passport reform, with M, F and X categories (where X includes indeterminate/unspecified/intersex)
  • Permitting LGBTI inclusive couples to access Certificates of No Impediment, to at least allow them to be married overseas, if not at home
  • Providing Gardasil vaccinations to teenage boys, so that future generations of gay and bisexual men are protected from anal, penile and throat cancer
  • Introducing Australian Government Guidelines on the Recognition of Sex and Gender, and
  • Removing some gender requirements for PBS medicines, meaning easier access to some treatments for trans* and intersex people.

The above list (which I am sure is not exhaustive) is, all things considered, a pretty impressive one.

It is a shame that, through their own actions (or, more specifically, inaction), the Rudd and Gillard Government will, for many, be remembered more because of the failure to recognise the fundamental equality of love, than any of the things I have noted above. Because, in reality, they left the state of LGBTI affairs in Australia a far better place on 7 September 2013, than what they inherited on 24 November 2007.

Still, there is one way in which the outgoing Labor Government could be remembered more fondly over time – and that is if the actions of the newly-elected Abbott-led Liberal and National Government make them seem better in hindsight.

Already, that looks like a distinct possibility. The first LGBTI-related action of the Abbott Government was taking the ACT and their same-sex marriage laws to the High Court (thus seeing them overturned). And there are plenty of other tests to come over the next 12-24 months, including deciding whether to continue funding for some of the above-named initiatives. Not to mention the potential threat to anti-discrimination reforms, and in particular the possibility of Brandis & co reintroducing an exemption for religious aged care service providers.

So, while we (quite rightly) criticise the Rudd & Gillard Labor Government for what it didn’t do, perhaps every once in a while we should also reflect on the good things that it did accomplish.