Quit Playing Games

With marriage equality set to be debated in Commonwealth Parliament during the next fortnight, I have written the below letter to all MPs and Senators, calling on them to legislate for genuine marriage equality, not a Bill (or amendments) that entrenches our second-class status. To send your own message that #equalmeansequal, click here.

 

**********

 

Dear MP/Senator

 

I met my fiancé Steven two weeks after my 30th birthday.

 

Within a few months it was clear this relationship was something special. Just 17 months after we met, in January 2010, we did what most couples who are in love do: we got engaged.

 

That means we have been engaged, waiting for the right to marry, for almost eight years.

 

Obviously, a lot of ‘life’ can happen in eight years. We’ve moved cities, changed jobs – almost as many times as the country has changed Prime Ministers – and even bought a home together (well, the small fraction that isn’t owned by the bank).

 

But, nearing the end of 2017, we still can’t plan our wedding day. I want to draw your attention to one of the consequences of our extended, involuntary wait.

 

My grandmother, who is now in the second half of her 90s, would have been able to attend our wedding had we held it when most couples do, within a year or two of our engagement.

 

Instead, with her health declining and having recently moved into assisted living, she won’t be there when Steven and I tie the knot.

 

The delay in passing marriage equality, due to the intolerance, and intransigence, of too many politicians over too many years, has stolen that moment of celebration from us all.

 

Steven’s situation is only slightly better. With a Portuguese background, family is even more important to him. He would love nothing more than to be able to wed in front of his grandmother.

 

But, in her late 80s and having recently had a pacemaker installed, we cannot ignore the possibility his dream may not come true, especially if marriage equality is delayed any further.

 

I think I will be even more upset for him if that moment is stolen, too.

 

Of course, the failure to lead on this issue by Julia Gillard, Tony Abbott, and Malcolm Turnbull among others, has taken much, much more from other couples, including Peter Bonsall-Boone and Peter de Waal who, after 50 years together, will forever be denied the ability to marry each other.

 

It’s time for you, as our elected representatives, to end the interminable wait for marriage equality, a wait that has already proven too long for too many.

 

Quit playing games with our relationships. Pass marriage equality now.

 

**********

 

I met my fiancé Steven one week after my brother’s wedding. Two years earlier I attended my sister’s wedding.

 

I look forward to being able to invite both of my siblings, and their respective spouses, to Steven and my nuptials.

 

When we finally say ‘I do’, though, there is a real chance our marriage will be subject to different terms and conditions than theirs. Because the legislation that will give us the right to marry will likely take away our rights in other areas.

 

The Marriage Amendment (Definition and Religious Freedoms) Bill 2017, introduced by Liberal Senator Dean Smith, is already deeply flawed, allowing existing civil celebrants to simply declare themselves ‘religious marriage celebrants’ in order to turn away same-sex couples, and unnecessarily duplicating religious exceptions from the Sex Discrimination Act within the Marriage Act.

 

Yet, there are many MPs and Senators who seem intent on making this unsatisfactory legislation even worse.

 

From Attorney-General George Brandis, who wants to provide all civil celebrants with the ability to discriminate against couples on the basis of their personal religious or conscientious beliefs, even though their role is entirely secular in nature.

 

And to add a ‘religious freedom’ declaration to the Act that will almost inevitably be used by the Australian Christian Lobby-created Human Rights Law Alliance to litigate to establish new ways of discriminating against LGBTI couples.

 

To Treasurer Scott Morrison, who apparently thinks school students need to be protected from learning about couples like Steven and me, and wants to legislate an unprecedented power for parents to withdraw their children from any class that even mentions the fact same-sex marriages exist.

 

Then there’s Liberal Democrat Senator David Leyonhjelm, who has already circulated amendments that would allow commercial businesses to discriminate against LGBTI couples on their wedding day. And, if they hold one, at their engagement party. Oh, and on all of their wedding anniversaries too.

 

None of these so-called ‘freedoms to discriminate’ operate currently with respect to inter-faith marriages, or to divorced couples remarrying. The fact they are being proposed now is homophobic.

 

Nor are any of these new religious exceptions necessary.

 

All that is required to introduce marriage equality is to amend the definition in the Marriage Act to be the union of two people, and to recognise the foreign marriages of same-sex couples that already exist. Nothing more.

 

After all, when Steven and I do eventually marry, there is absolutely no reason why we should be treated any differently to, or worse than, my brother or my sister were.

 

Quit playing games with our rights. Pass genuine marriage equality.

 

**********

 

I met my fiancé Steven four days before the 4th anniversary of John Howard’s ban on marriage equality.

 

His Government’s discriminatory Bill was rushed through the Parliament, and passed by the Senate on Friday 13 August, 2004.

 

Lesbian, gay, bisexual, transgender and intersex Australians have spent more than 13 years trying to undo his changes, and for a better, fairer, and more-inclusive Marriage Act to be adopted in its place.

 

The process for doing so should have been the same one employed by the then-Liberal Prime Minister: a parliamentary vote.

 

Instead, our two more-recent Liberal Prime Ministers have both argued that LGBTI Australians should have to overcome hurdles that have not been placed in front of other groups.

 

First, it was the proposed plebiscite – a national, non-binding vote that has only been used three times in the 117 years since Federation, but not once to decide on the human rights of a minority, and not once in my lifetime.

 

Then, when that process was firmly rejected by the Senate – at the request of the LGBTI community itself – the Turnbull Government decided to invent a ‘postal survey’ run by the Australian Bureau of Statistics, a 3-month, $100 million farce that confirmed what every opinion poll of the last decade had already found, while also stirring up homophobia, biphobia and transphobia in the community.

 

Let’s be clear: the postal survey should never have been held. And it must never, ever be imposed on any other group.

 

Now, having jumped through those extra hoops, and with marriage equality set to be debated by Commonwealth Parliament, the rules have apparently changed once more.

 

Instead of respecting the outcome of the process they chose, which overwhelmingly supported marriage equality, some MPs and Senators are spending more time creating additional restrictions to ensure our relationships are considered lesser than the marriages of cisgender heterosexual couples.

 

They are trying to change the rules of the game, right when LGBTI couples finally get the chance to take our rightful place on the field. Or at the altar. Or wherever we decide to marry.

 

That simply isn’t good enough.

 

Quit playing games with our community. Pass marriage equality, and stop creating new ways to discriminate against us.

 

**********

 

I met my fiancé Steven at a time when I had started to genuinely wonder whether I would ever find someone to spend my days with, let alone share a wedding day.

 

As an LGBTI advocate, the ability to marry felt like an abstract, or even hypothetical, right – important, yes, but not something I thought I would exercise myself.

 

Fortunately, falling in love made the hypothetical real, and today, more than nine years into our relationship, our desire to get married is more real than ever.

 

Unfortunately, public discussion over the past few weeks has at times felt ‘un-real’, as some MPs and Senators have debated the abstract ability of people to discriminate against LGBTI couples, rather than the practical rights of those couples to marry.

 

They have focused on hypothetical homophobic bakers, florists, and wedding-venue providers, and lost sight of the fact marriage equality should be about removing discrimination, not adding to it.

 

Once this parliamentary debate is over, if any of their amendments are passed, the rights of people to discriminate against us will sadly be very real.

 

The message that parliament would send – that our marriages are second-class – would be very real too. And LGBTI Australians would be reminded of that fact every time we are turned away by civil celebrants, or other wedding-related businesses, for years or even decades into the future.

 

It’s time for you, as our elected representatives, to decide what kind of legacy you want to leave. A better, fairer, and more-inclusive Australia. Or a country that chose something else, something lesser.

 

I started this letter by noting that Steven and I met two weeks after my 30th birthday. As much as I might try to deny it that means next year we will celebrate two major milestones: my 40th birthday and, much more significantly, our 10th anniversary.

 

As verbose as I am, I don’t actually have the words to express how much it would mean to me to finally be able to marry the man I love after all this time.

 

And so, I make this final plea to you:

 

Quit playing games. Pass marriage equality now. But, when you do, make sure it treats all couples equally. Because we are. Equal.

 

Sincerely,

Alastair Lawrie

 

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Why we should say ‘I don’t’ to religious exceptions for civil celebrants

The issue of marriage equality will be decided by Commonwealth Parliament in the next fortnight, first in the Senate (from Monday 27 November) and then, assuming it clears the upper house, in the House of Representatives (from Monday 4 December).

 

The ‘starting point’, problematic though it may be, is Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017. Although what this legislation looks like by the end of this process remains unpredictable.

 

That’s because a wide variety of Coalition MPs are likely to put forward an even more diverse range of amendments. In this post I will discuss just one, already foreshadowed by Senator George Brandis: to provide all civil celebrants with the ability to discriminate on the basis of their personal religious or conscientious beliefs.[i]

 

I do so because, at this stage, this amendment seems to have a better chance of being successful – in part because of who is proposing it (the Attorney-General, a supposed ‘moderate’ within the Government) and also because it is marginally less extreme than some of the other changes flagged by people like James Paterson, Scott Morrison and Peter Dutton.

 

I don’t, however, support Senator Brandis’ amendment, for the following reasons:

 

  1. Civil wedding ceremonies are not religious. Indeed they were explicitly created as an alternative to religious ceremonies – and are now a very popular alternative, accounting for 3-in-4 weddings in Australia in 2015. If the wedding itself is not religious, surely the religious beliefs of the person officiating it are irrelevant.

 

  1. The ability to discriminate does not currently exist. There are a wide range of religious beliefs around marriage, including people who don’t support marriages between people of different faiths, while others don’t believe in divorce and remarriage. And yet, civil celebrants do not enjoy a special privilege to discriminate for these reasons. That it is being contemplated now, when LGBTI Australians might finally be able to wed, reveals that such an amendment is fundamentally homophobic.

 

  1. Civil celebrants are performing a duty on behalf of the state. Only people who are formally registered are given the legal authority to officiate marriage ceremonies – their role is regulated by, and delegated by, the Commonwealth Government. If the Government is not able to discriminate on the basis of sexual orientation, gender identity or intersex status, then nor should people who are fulfilling a secular function on its behalf.

 

Some people do not accept this characterisation, instead asserting civil celebrants are more akin to small business owners. But even on this theoretical foundation, there is absolutely no basis to provide them with special privileges to discriminate against LGBTI couples (or any other couples for that matter):

 

  1. Commercial businesses should not be able to discriminate on the basis of personal religious or conscientious beliefs. They cannot be allowed to hang signs in their windows – real, or online – saying ‘no gays allowed’. In 2017, it feels strange to actually have to put that down in black and white, but it is the inevitable consequence of Senator Brandis’ proposal. And others within the Turnbull Government would go even further (with Kevin Andrews arguing Jewish bakers should be able to refuse Muslim customers, and vice versa).

 

  1. If civil celebrants are allowed to discriminate, it is difficult to withhold this privilege from other wedding-related businesses. While some claim civil celebrants play such a central role in weddings they alone should be able to discriminate, philosophically it is hard to distinguish their position from others closely involved in the same ceremonies (including photographers, wedding venue-providers and even florists). If the former is permitted to reject couples on the basis of personal prejudice, why not the latter? By opening the door to civil celebrants, we may end up inadvertently allowing plenty of others to walk through – when all should be kept outside.

 

  1. Allowing civil celebrants to discriminate creates a terrible precedent for anti-discrimination law in Australia. Currently, the Commonwealth Sex Discrimination Act, and most state and territory anti-discrimination laws, only permit religious organisations to discriminate against LGBT people. They do not provide the same special privileges to individuals. The Australian Christian Lobby desperately wants an individual ‘freedom to discriminate’ against people on the basis of sexual orientation, gender identity or intersex status. By granting this ability to civil celebrants in the Marriage Act, a change that may seem small to many, we would actually be handing Lyle Shelton a large victory, and an invaluable tool in his ongoing campaign against LGBTI equality.

 

For all of these reasons, I think that anyone who supports genuine marriage equality – including the LGBTI community, our families, friends and allies, and the 61.6% of the population who voted Yes – should say ‘I don’t’ to religious exceptions for civil celebrants.

 

**********

 

It would, however, be remiss of me not to address an argument that is commonly used to support such special privileges, one that is advanced even by some within the LGBTI community itself. That is the view that ‘why would couples want to be married by someone who disagrees with their relationship?’

 

The answer, of course, is that the vast majority of couples do not (although some, especially in rural and regional areas, may have few other options).

 

But, with all due respect to the people making this case, so what? That response doesn’t actually deal with the substantive issue at hand, and completely misunderstands the essential role of anti-discrimination law.

 

To see why, let’s apply the same question to other scenarios: Why would anyone want the florist for their wedding to be prejudiced against LGBTI people? The (now clichéd) baker? The wedding venue-provider?

 

Why would an LGBTI couple want to spend their honeymoon at a hotel where the proprietor disagrees with their relationship? Or to celebrate their anniversary at a restaurant whose owner is homophobic, biphobic, transphobic or intersexphobic?

 

Why would a lesbian, gay, bisexual, transgender or intersex employee want to work for an anti-LGBTI employer?

 

The answer, again, is that most LGBTI people do not want to find themselves in any of these circumstances. But, for a variety of reasons (including the impact of historical discrimination, ongoing homophobic attitudes in society-at-large, and differences in power and privilege) plenty of people do – and that is the reason we have anti-discrimination laws in the first place.

 

The Sex Discrimination Act, and its state and territory equivalents, operate to protect vulnerable groups against adverse treatment, wherever it occurs: the provision of goods and services, education, employment and other areas of public life. That obviously covers civil celebrants offering their services to the public, too.

 

In amending the Marriage Act, we should not support anything that undermines these vital anti-discrimination protections. By conceding that discrimination by civil celebrants should be allowed, by effectively ‘picking and choosing’ when anti-LGBTI prejudice is made lawful, we would be doing exactly that.

 

Once this broader principle of anti-discrimination has been sacrificed, our opponents will stake their claims for ever-widening ‘freedoms to discriminate’. Indeed, Liberal Democrat Senator David Leyonhjelm has already circulated amendments to the Smith Bill that would make it entirely legal to discriminate against LGBTI couples in providing goods, services or facilities in relation to:

“(a) the solemnisation of a marriage under the Marriage Act 1961; or

(b) the preparation for, or celebration of, such a marriage; or

(c) the preparation for, or celebration of, events associated with such a marriage, including:

(i) an event announcing or celebrating the engagement of the parties to be married; and

(ii) an event celebrating the anniversary of the marriage.”

 

No doubt other conservative MPs and Senators will move their own amendments in the course of parliamentary debate, some perhaps more expansive, and even worse, than these.

 

They must, of course, be rejected – for exactly the same reasons that we must reject Senator Brandis’ amendment concerning civil celebrants. Because lesbian, gay, bisexual, transgender and intersex Australians should not be discriminated against in any area of public life. No exceptions.

 

If you agree, please take two minutes to write to Commonwealth MPs and Senators to let them know that #equalmeansequal, and that there should be ‘No compromise on equality’ (click here).

 

**********

 

One final point before I conclude. By now, I have hopefully convinced you to say ‘I don’t’ to Senator Brandis’ amendment to create religious exceptions for civil celebrants.

 

If that is the case, then logically you should also say ‘I don’t’ to the Smith Bill itself – because all of the above arguments can also be made against sub-section 39DD(2), which would allow existing civil celebrants to nominate to become ‘religious marriage celebrants’, and discriminate against LGBTI couples, based on nothing more than their personal religious beliefs.

 

That’s why I and others have argued passionately that the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, as it currently stands, does not offer genuine marriage equality. And why we should be pressuring Labor, the Greens and anyone else who claims to support LGBTI equality to amend that legislation to remove such discriminatory provisions.

 

I guess we’ll all find out in the coming fortnight how real their commitment to equality actually is.

 

George Brandis 25

Attorney-General George Brandis, who is proposing religious exceptions for civil celebrants.

 

Footnotes:

[i] Interestingly, Senator Brandis is doing so even though civil celebrants themselves do no support such an amendment. As reported this week in the Sydney Morning Herald , Dorothy Harrison, the chair of the Coalition of Celebrant Associations, said: “We don’t approve of exemptions. We feel that if that’s the law of the country, then that’s what you do. We have discrimination laws and we have to live by them.”

Bill Shorten, It’s time to honour your commitment on marriage equality

The following is my open letter to Opposition Leader Bill Shorten, ahead of the announcement of the postal survey result this Wednesday (15 November) and likely subsequent parliamentary consideration of marriage equality legislation:

 

**********

 

On 31 March 2016, you attended a panel event called ‘Why Knot?’ in Redfern, co-hosted by the Guardian Australia and Australian Marriage Equality.

 

At the end of that forum, during the Q&A session, I asked you the following question:

 

“There is a real risk that, when Malcolm Turnbull finally gets around to drafting it, his Marriage Amendment Bill will seek to include new special rights for civil celebrants and other wedding business-providers to discriminate against LGBTI couples. Just to get it on the record: Mr Shorten, will you commit the Labor Party to voting against any attempts to expand religious exceptions beyond existing provisions and, if they do somehow end up being passed and polluting the Marriage Act, will you seek to repeal them at the earliest available opportunity?”[i]

 

Your answer: “Yes, and yes.”

 

As reported by the Guardian, you went on to state: “It’s not allowed under the current law – why would we water down existing laws? We don’t need to water down anti-discrimination law to keep some people [who oppose same-sex marriage] happy.”

 

You were right then.

 

You were right because this reform, marriage equality, is about removing discrimination against people on the basis of their sexual orientation, gender identity or sex characteristics. One form of discrimination should not simply be replaced by another.

 

You were right because protections for ‘religious freedom’ that are only introduced when LGBTI couples might finally have the opportunity to wed should be seen for what they are: attempts to legitimise homophobia, biphobia and transphobia.

 

You were right because the vast majority of LGBTIQ Australians do not want our long desired, long fought for and long overdue equal right to marry undermined by new special privileges to discriminate against us – with research at the start of 2017 confirming that:

 

“81% of the 6,352 LGBTIQ adult Australians taking part in this survey were strongly opposed to potential new laws making it legal for individuals and organisations to refuse their services to same-sex couples, based on personal conscience or religious belief.”

 

And you were right because four-in-five Australians agree, with a poll earlier this month reporting that:

 

“In response to the question, ‘If the majority vote ‘yes’ in the postal survey, should same-sex couples be treated the same under the law compared with other couples?’, 78% of respondents said yes. This figure consisted of 98% of respondents who said they had voted ‘yes’, and also 43% of those who said they had voted ‘no’.”

 

You were right then. Are you still right now? Specifically, will you, and the Labor Party, do the right thing when marriage equality legislation is likely considered by Commonwealth Parliament in the coming weeks and months?

 

I ask this question because I am extremely disappointed by reports that the Labor Caucus has already decided to support Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017, describing it as an ‘acceptable compromise’.

 

This is despite the fact his draft legislation:

 

  • Permits existing civil celebrants to discriminate against LGBTI couples by nominating to become ‘religious marriage celebrants’ based on nothing more than their personal beliefs [section 39DD(2)], and
  • Unnecessarily duplicates exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples [section 47B].

 

Both of these provisions appear to be matters you either explicitly or implicitly rejected in your answer at that forum in Redfern just over 19 months ago.

 

I urge you to reconsider your, and your Party’s, position on the Smith Bill, not just because of your previous commitment to me and to that audience, but also because of the principle that marriage equality should be exactly that: equal. The weddings of LGBTI Australians, when they are finally made legal, must not be subject to any extra terms and conditions than those that already exist.

 

At the very least, I believe you should develop amendments to remove both of the above provisions from the Smith Bill prior to its potential passage.

 

I am sure you are also aware of reports that conservatives within the Liberal and National Parties are busy preparing their own amendments to the Smith Bill that would extend discrimination against lesbian, gay, bisexual, transgender and intersex people across a wide range of areas of public life.

 

It is incumbent upon you, and every member of the parliamentary Labor Party, to vote against every amendment that seeks to perpetuate the second-class treatment of LGBTI Australians, our relationships and our families.

 

In this context, the debate around marriage equality legislation will be an opportunity for you to show, once again, the leadership on this issue that Prime Minister Malcolm Turnbull will not.

 

You stood with the LGBTI community against the unnecessary, wasteful and divisive plebiscite in October 2016.

 

You stood with the LGBTI community again, earlier this year, against the equally unnecessary, wasteful and divisive (and arguably illegitimate) postal survey.

 

When the survey went ahead, you stood with the LGBTI community a third time by campaigning to help win the public vote.

 

Please stand with us now by voting to ensure any Bill that is passed represents genuine marriage equality, not just same-sex marriage subject to additional discrimination.

 

It’s time to honour your commitment, to me, to LGBTI Australians, and to every person who has voted Yes to the equal treatment of equal love.

 

Sincerely,

Alastair Lawrie

 

Bill Shorten Commitment

Will Opposition Leader Bill Shorten support genuine marriage equality?

Footnotes:

[i] I recorded the question shortly thereafter – and published it in April 2016 in the following article: In the battle for marriage equality, we must not forget to fight against religious exceptions.

The push for new exceptions in the Marriage Act is homophobic. Here’s why.

Voting in the same-sex marriage postal survey has now closed. Based on the widely-held assumption that the majority of Australians have voted Yes, discussion has now turned to what amendments will be made to the Marriage Act to implement this outcome.

 

Conservatives who have opposed marriage equality throughout this process, including the Australian Christian Lobby and many Liberal and National Party MPs and Senators, are now arguing that any change to the law must include new exceptions providing a broad range of special privileges to discriminate against LGBTI couples.

 

As WA Liberal MP Ian Goodenough has publicly acknowledged: “[t]he focus will be in the area of preserving parental rights, freedom of speech, and institutional considerations such as curriculum in schools, access to reproductive technology, correctional facilities, etc…”

 

This is on top of those new exceptions already included in Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedom) Bill 2017, which, as I have written elsewhere, would:

 

  • Permit existing civil celebrants to nominate to become ‘religious marriage celebrants’ so they can avoid marrying LGBTI couples,
  • Duplicate exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples, and
  • Reinforce the ability of military chaplains, who are public servants, paid for with taxpayers’ money, to refuse to perform the marriage ceremonies of LGBTI personnel serving within the ADF.[i]

 

The supposed justification for these new exceptions? That they are essential to protect the ‘religious freedom’ of people who object to marriage equality on the basis of their personal faith.

 

Which is, to put it bluntly, bollocks.

 

The coordinated campaign for new exceptions in the Marriage Act has very little to do with ‘religious freedom’. This push is primarily, almost exclusively, about legitimising homophobia, biphobia and transphobia.

 

This motivation can be seen through one simple comparison – how the Marriage Act has treated divorced couples remarrying over the past four decades versus how conservatives are proposing LGBTI couples should be treated now.

 

After all, there are a variety of religious beliefs about divorce and remarriage, just as there is a range of religious perspectives about marriage equality. The single largest religious organisation in Australia – the Catholic Church – remains staunchly opposed to both. Other faith groups support both.

 

So, if there are individuals and groups with strong views about, specifically against, divorce and remarriage, surely the Marriage Act will already contain special privileges allowing discrimination against people having second, or subsequent, weddings?

 

Well, no actually.

 

Even following the introduction of ‘no fault’ divorce as part of the Family Law Act reforms in 1975, the Marriage Act was not amended to provide civil celebrants with the ability to discriminate against people remarrying. Nor were military chaplains given ‘strengthened’ powers to refuse to perform the marriage ceremonies of ADF personnel tying the knot for the second time.

 

The inconsistent treatment of divorced people remarrying and LGBTI couples is demonstrated even more powerfully by considering the introduction of the Sex Discrimination Act 1984.

 

As well as prohibiting discrimination on the basis of sex, from its very beginning this legislation has protected people against discrimination on the basis of their ‘marital status’, an attribute that was originally defined as:

 

“the status or condition of being-

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person…” [emphasis added].

 

Discrimination on the basis of ‘marital or relationship status’ remains prohibited under the Sex Discrimination Act today.

 

Which means that, for 33 years, the Marriage Act has happily coexisted with legislation that prohibits discrimination against divorced people remarrying – including discrimination by civil celebrants.

 

For 33 years, there has apparently not been a need to duplicate exceptions from the Sex Discrimination Act within the Marriage Act allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away couples wishing to remarry.

 

For 33 years, there has been no massive campaign to ‘preserve parental rights, freedom of speech, and institutional considerations such as curriculum in schools’ about divorce and remarriage.

 

At no point during this time, not when marriage equality was originally banned by the Howard Government in August 2004, or even when the same Government had a majority in both houses of parliament between 2005 and 2007, has there been a concerted push to amend the Marriage Act to protect the ‘religious freedom’ of people who object to divorce and remarriage on the basis of their personal faith.

 

So, why now? If it was not necessary to protect ‘religious freedom’ following the introduction of no fault divorce more than four decades ago, nor at any point since the prohibition of discrimination on the basis of marital status more than three decades ago, why is it suddenly necessary to defend ‘religious freedom’ today?

 

The logical conclusion – in my view, the only possible conclusion – is that the changes being put forward, in Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill, and by others like his Coalition colleague Ian Goodenough, are not actually about religious freedom at all.

 

If these amendments are only being put forward now that lesbian, gay, bisexual, transgender and intersex Australians might finally have the opportunity to legally marry, then their intended purpose appears to be: to legitimise discrimination against LGBTI couples.

 

These provisions are inherently homophobic. And biphobic. And transphobic, too.

 

People arguing for ever-widening exceptions in the Marriage Act can dress their proposals up in all the fine language they want. But they cannot hide the naked truth: such amendments are just homophobia in a fancy frock.

 

It is simply not good enough for the long desired, long fought for, and long overdue introduction of marriage equality to be undermined by the inclusion of religious exceptions that will, in practice, perpetuate discrimination against LGBTI couples.

 

Equal should mean equal – and that means LGBTI couples marrying in the future should be treated exactly the same as divorced people remarrying are now.

 

Goodenough

Liberal MP Ian Goodenough, whose proposed amendments to the Marriage Act are definitely not good enough for LGBTI Australians.

 

Footnotes:

[i] It should be noted that Smith’s Bill also permits increased, or strengthened, discrimination against other groups, including divorced people remarrying. This is to avoid criticisms of Senator Brandis’ 2016 Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill, which explicitly discriminated against same-sex couples. It is unlikely that many divorced Australians understand they could theoretically be discriminated against as a result of the Smith Bill. Then again, they probably shouldn’t worry too much – the timing of the introduction of these amendments, and the public debate surrounding them, confirm that LGBTI Australians are the real target.

A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Commonwealth_ Sex Discrimination Act 1984

 

In the five years I have been writing about LGBTI rights in Australia, I have yet to come across a quick guide to the laws which protect lesbian, gay, bisexual, transgender and intersex Australians against discrimination (even the Wikipedia page ‘LGBT rights in Australia’ has a brief description of the rights provided by the Sex Discrimination Act 1984 before stating that ‘each of the states and territories have their own laws which protect LGBTI people from discrimination’ – and that’s it).

 

In which case, and given I have already written in detail about the LGBTI anti-discrimination and anti-vilification laws that exist in the Commonwealth, and each of the States and Territories (those posts can be found here), I thought it would be useful to provide the following short summary of these laws, including who they cover, the religious exceptions they contain, and whether they provide protection against vilification:

 

  1. What is the relevant law?

 

Jurisdiction

Legislation

Commonwealth

Sex Discrimination Act 1984

New South Wales

Anti-Discrimination Act 1977
Victoria

Equal Opportunity Act 2010

Queensland

Anti-Discrimination Act 1991

Western Australia

Equal Opportunity Act 1984
South Australia

Equal Opportunity Act 1984

Tasmania

Anti-Discrimination Act 1998

Australian Capital Territory

Discrimination Act 1991

Northern Territory

Anti-Discrimination Act

 

  1. Are lesbians, gay men and bisexuals protected against discrimination?

 

                                 

Lesbians and gay men

Bisexuals

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

As you can see, the NSW Anti-Discrimination Act 1977 is the only anti-discrimination law in Australia that does not cover bisexual people[i] (perhaps relatedly, it is also the only jurisdiction where heterosexuals have no protection under anti-discrimination law).

 

  1. Are transgender people protected against discrimination?

 

Different jurisdictions have adopted different approaches to transgender anti-discrimination protection, in large part due to when their respective laws were introduced. This means that while some cover gender identity broadly,[ii] others only protect trans people with binary gender identities (where a person identifies with the ‘opposite’ gender to that which they were assigned at birth – eg MTF and FTM trans people) and exclude people with non-binary gender identities (ie people whose gender identities are more diverse).[iii]

 

                                 

Trans people with binary gender identities

People with non-binary gender identities

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

Some*
South Australia

Tasmania

Australian Capital Territory

Northern Territory

Some*

 

Disappointingly, only four jurisdictions cover people with both binary and non-binary gender identities. While seven laws at a minimum cover all people with binary gender identities, there are two jurisdictions that have adopted even narrower definitions:

 

  • The Western Australian Equal Opportunity Act 1984 only covers people who have been issued with a recognition certificate under the Gender Reassignment Act 2000 (meaning those people who have transitioned and where that transition has been recognised by the Government);[iv]

 

  • The Northern Territory Anti-Discrimination Act protects ‘transsexuality’ as part of the definition of ‘sexuality’ – some people who have binary gender identities (MTF or FTM) may not identify with this terminology. More hopefully, the new NT Government is currently considering possible improvements to their legislation, including the introduction of ‘gender identity’ as a protected attribute (for more information, see their consultation paper here.)

 

  1. Are intersex people protected against discrimination?

 

 

Intersex

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

When the Commonwealth Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, it became the first national parliament in the world to include ‘intersex status’ as a protected attribute.[v] Since then, Tasmania, the ACT and South Australia have all introduced amendments to protect intersex people against discrimination.

 

It should be noted however that intersex advocates have called for this terminology to be updated, with ‘intersex status’ replaced with the protected attribute of ‘sex characteristics’ (as part of the historic March 2017 Darlington Statement). As at the start of 2018, no Australian jurisdiction has adopted this terminology.

 

  1. Are LGBT people protected against discrimination by religious organisations (general)?

 

As I have written extensively elsewhere, one of the key weaknesses of most LGBTI anti-discrimination laws in Australia is that they provide special rights for religious organisations to discriminate against lesbian, gay, bisexual and transgender people.[vi] We will first examine how these religious exceptions operate generally, before looking specifically at the issues of students in religious schools (question 6) and teachers and other staff in religious schools (question 7).

 

                                 

Do LGBT people have any protections against discrimination by religious organisations?

LGBT people have limited protections against religious discrimination

LGBT people have general protections against religious discrimination

Commonwealth

Aged care*
New South Wales

Victoria

Queensland

Western Australia

South Australia Teachers*

Tasmania

Australian Capital Territory

Northern Territory

 

There is only one LGBTI anti-discrimination law in Australia that offers general protections against discrimination by religious organisations: Tasmania’s Anti-Discrimination Act 1998. That is because the religious exceptions contained in that legislation only allow religious organisations to discriminate on the basis of people’s religious beliefs, and not on the basis of sexual orientation, gender identity or intersex status.

 

On the other hand, the religious exceptions contained in the anti-discrimination laws of New South Wales, Victoria, Western Australia and the Australian Capital Territory provide religious organisations with carte blanche to discriminate against LGBT people. Section 56 of the NSW Anti-Discrimination Act 1977 is a typical example of the special rights given to these bodies:

 

“Nothing in this Act affects:

(a) the ordination or appointment of priests, ministers of religious or members of any religious order,

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religious or members of a religious order,

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avid injury to the religious susceptibilities of the adherents of that religion.”

 

The other jurisdictions offer only limited protections against religious-based discrimination against LGBT people. Under the Commonwealth Sex Discrimination Act 1984, religious organisations can discriminate against LGBT people in all circumstances other than with respect to LGBT people accessing Commonwealth-funded aged care services[vii] (although they can still discriminate against LGBT employees in these facilities).

 

The Queensland Anti-Discrimination Act 1991 actually contains the second-best protections for LGBT people against discrimination by religious organisations. It does not allow discrimination against LGBT students in religious schools, and has limited protections for teachers too (see questions 6 and 7 respectively). More broadly, it does not provide a general right for religious organisations to discriminate against LGBT employees, but instead limits this right to employees where acting, or not acting, in a particular way breaches the ‘genuine occupational requirements’ of that position.[viii]

 

The South Australian Equal Opportunity Act 1984 provides broad religious exceptions outside religious schools, where they may or may not be able to discriminate against LGBT students, and have to satisfy procedural obligations in order to discriminate against LGBT teachers (see questions 6 and 7, below).

 

Finally, the religious exceptions contained in the Northern Territory Anti-Discrimination Act are narrower than in other jurisdictions because of the specific wording that is used:

 

“Section 51 This Act does not apply to or in relation to: …

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

 

This at least restricts the discrimination that is permissible to acts in relation to ‘religious observance or practice’ only (although there are specific exceptions in relation to employment in religious schools – see question 7 below).

 

  1. Are LGBT students protected against discrimination by religious schools?

 

 

LGBT students at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Probably not*
Tasmania

Australian Capital Territory

Northern Territory

Probably*

 

There are only two jurisdictions in which LGBT students are clearly protected against discrimination by religious schools: Tasmania and Queensland. In two other jurisdictions, the level of protection is debatable. In the Northern Territory it is likely that LGBT students are protected, because of the narrow way in which the religious exceptions contained in section 51 of the Anti-Discrimination Act are framed.

 

In South Australia the situation is less clear. Section 37 of the Equal Opportunity Act 1984 provides quite broad protections against discrimination by educational authorities against students on the basis of sexual orientation or gender identity.[ix] However, it is possible these protections are still overridden by the broad religious exceptions contained in sub-section 50(1)(c).[x]

 

In all of the other jurisdictions, including the Commonwealth, NSW, Victoria, Western Australia and the ACT, LGBT students do not have protection against discrimination by religious schools. Indeed, the exceptions contained in the NSW Anti-Discrimination Act 1977 go even further, allowing discrimination against lesbian, gay and transgender students by all private schools and colleges, even where those institutions are not religious.[xi]

 

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

  1. Are LGBT teachers protected against discrimination by religious schools?

 

 

LGBT teachers at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Don’t Ask, Don’t Tell*
Western Australia

South Australia

Procedural requirements*
Tasmania

Australian Capital Territory

Northern Territory

 

Only one Australian LGBTI anti-discrimination law fully protects lesbian, gay, bisexual and transgender teachers and other staff at religious schools against discrimination: Tasmania’s Anti-Discrimination Act 1988.

 

In Queensland, religious schools are allowed to discriminate against people who work for religious schools where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs, during a selection process; or in the course of the person’s work; or in doing something connected with the person’s work; and it is a genuine occupational requirement of the employer that the person… act in a way consistent with the employer’s religious beliefs.”[xii]

 

However, religious schools are not allowed to ‘seek information’ in relation to an employee’s sexual orientation or gender identity. In effect, LGBT teachers and other staff at religious schools in Queensland are subject to a ‘Don’t Ask’ Don’t Tell’ policy (which, as was seen in relation to the United States military, is nevertheless an unjust and unjustifiable imposition on a minority group).

 

In South Australia, religious schools are allowed to discriminate against LGBT teachers and other staff, however this ‘right’ is subject to procedural requirements, including that the school must have a written policy outlining its discriminatory policy which is provided to people interviewed for or offered employment. The policy must also be provided on request, free of charge, to employees, students and parents (and prospective employees, students and parents) as well as to general members of the public.[xiii]

 

In all other Australian jurisdictions (the Commonwealth, NSW, Victoria, WA, the ACT and the Northern Territory[xiv]), religious schools are free to discriminate against LGBT teachers. Once again, in NSW this extends to all private schools and colleges, even where they are not religious.[xv]

 

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

  1. Are lesbians, gay men and bisexuals protected against vilification?

 

                                 

Lesbians and gay men

Bisexuals
Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

Only four Australian jurisdictions offer any anti-vilification protections for the LGBTI community: NSW, Queensland, Tasmania and the ACT.

 

In NSW, as with the protections against discrimination, these laws do not cover bisexual people against vilification. The maximum individual fine for ‘homosexual vilification’ under the NSW Anti-Discrimination Act 1977 is also significantly lower than the maximum individual fine for ‘racial vilification’ (10 penalty units[xvi] versus 50 penalty units[xvii]).

 

In contrast, the Commonwealth, Victoria, Western Australia and South Australia all have protections against racial vilification, but fail to offer equivalent protections against anti-LGBTI vilification. The Northern Territory does not prohibit either racial or anti-LGBTI vilification – although it is considering the issue of anti-vilification protections as part of its current consultation process.

 

  1. Are trans and intersex people protected against vilification?

 

                                 

Trans people with binary gender identities

People with non-binary gender identities

Intersex

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

Four jurisdictions protect transgender people with binary gender identities against vilification (NSW[xviii], Queensland, Tasmania and the ACT). However, given the narrow definitions adopted in the NSW Anti-Discrimination Act 1977 and the Queensland Anti-Discrimination Act 1991, only Tasmania and the ACT protect people with non-binary gender identities against vilification.

 

Those same jurisdictions – Tasmania and the ACT – are also the only places in Australia to prohibit vilification on the basis of intersex status. However, in Tasmania there is a concern in that while all of sexual orientation, gender identity and intersex are included in the general anti-vilification provision,[xix] only sexual orientation is included as part of the more serious offence of inciting hatred.[xx]

 

  1. What other issues exist with Australian LGBTI anti-discrimination laws?

 

The above questions have examined three main areas of the LGBTI anti-discrimination laws across the Commonwealth, and the States and Territories:

 

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

 

However, these are not the only areas where there are significant problems with the anti-discrimination laws that apply to lesbian, gay, bisexual, transgender and bisexual people in Australia. The following is a non-exhaustive list of some of the other issues I have come across:

 

Commonwealth: The Sex Discrimination Act 1984 does not establish a position of LGBTI Discrimination Commissioner (despite providing for a Sex Discrimination Commissioner). This leaves Australia’s LGBTI community at a significant disadvantage compared to other vulnerable groups, and should be rectified (for more on this issue, see: Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission).

 

NSW: The Anti-Discrimination Act 1977 allows employers with five employees or less to discriminate against LGBT employees[xxi]. There are no such provisions allowing employers to discriminate on the basis of race.

 

Victoria: The Equal Opportunity Act 2010 doesn’t just allow religious organisations to discriminate against LGBT people, it also includes a special right for individuals to do the same[xxii] (a provision that does not seem to be replicated in any other jurisdiction).

 

Queensland: The Anti-Discrimination Act 1991 includes a particularly abhorrent section which allows discrimination against transgender people in relation to employment that involves children. Section 28 states:

 

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having regard to all the relevant circumstances of the case, including the person’s actions.”

 

Western Australia: While the Equal Opportunity Act 1984 allows for positive discrimination “to ensure that persons of a particular sexual orientation have equal opportunities with other persons”[xxiii] there are no equivalent provisions allowing for positive discrimination for transgender people.

 

South Australia: Disappointingly, the Equal Opportunity Act 1984 makes it lawful to discriminate “on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”[xxiv]

 

  1. Are LGBTI people protected against discrimination under the Commonwealth Fair Work Act 2009?

 

While most anti-discrimination protections are included in the nine Commonwealth, state and territory laws discussed above, there is also a key protection against discrimination located in the Fair Work Act 2009.

 

                                 

Are lesbians, gay men and bisexuals protected under the Fair Work Act?

Are transgender people protected? Are intersex people protected?
Commonwealth

 

Unfortunately, as this table demonstrates, the Commonwealth Fair Work Act 2009 does not protect all parts of the LGBTI community against discrimination. That is because section 351 provides that:

 

“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

 

While it includes sexual orientation (meaning lesbian, gay and bisexual people enjoy protection), the omission of gender identity and intersex status leaves both of these groups without equivalent protection.[xxv] This is a serious deficiency that must be addressed as a matter of priority.

 

**********

 

For more detailed analysis of the LGBTI anti-discrimination laws that operate in the Commonwealth, and each State and Territory, see:

 

 

 

 

 

 

 

 

 

 

**********

 

Footnotes:

[i] NSW protects only ‘homosexuality’, with the definition in section 4 of the Anti-Discrimination Act 1977 stating that ‘homosexual means male or female homosexual’. In contrast, other jurisdictions either include a protected attribute of ‘sexual orientation’, or specifically include both homosexuality and bisexuality.

[ii] For example, section 4 of the Commonwealth Sex Discrimination Act 1984 defines gender identity as ‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’

[iii] For example, section 38A of the NSW Anti-Discrimination Act 1977 states that ‘[a] reference in the Part to a person being transgender or a transgender person is a reference to a person… (i) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (ii) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[iv] The Western Australian Equal Opportunity Act 1984 prohibits discrimination ‘against a gender reassigned person on gender history grounds’ (section 35AB), where section 4 defines a gender reassigned person as ‘a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000’ while section 35AA states that ‘a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.’

[v] With ‘intersex status’ defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as ‘the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

[vi] In this section, I refer primarily to LGBT people, rather than LGBTI people, because it is generally understood that religious exceptions would not (or at the very least should not) be used against people with intersex variations.

[vii] Sub-section 37(2) of the Commonwealth Sex Discrimination Act 1984 limits the general religious exceptions contained in the Act by stating that they do “not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment or persons to provide that aged care.”

[viii] Sub-section 25(3) of the Queensland Anti-Discrimination Act 1991 provides that:

“It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.”

[ix] SA Equal Opportunity Act 1984: “Section 37- Discrimination by educational authorities …

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”

[x] SA Equal Opportunity Act 1984: “This Part does not render unlawful discrimination in relation to-

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

[xi] Sections 38K(3) and 49ZO(3), NSW Anti-Discrimination Act 1977.

[xii] Sub-sections 25(2) and (3) of the Queensland Anti-Discrimination Act 1991.

[xiii] SA Equal Opportunity Act 1984: Sub-section 34(3):

“This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

[xiv] Despite its relatively narrow religious exceptions, section 37A of the NT Anti-Discrimination Act provides an explicit right for religious schools to discriminate against LGBT teachers:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

[xv] Sub-sections 38C(3)(c) and 49ZH(3)(c), NSW Anti-Discrimination Act 1977.

[xvi] Sub-section 49ZTA(1)(b), NSW Anti-Discrimination Act 1977.

[xvii] Sub-section 20D(1)(b), NSW Anti-Discrimination Act 1977.

[xviii] Although, once again, the maximum individual fine for transgender vilification (as established in sub-section 38T(1)(b) of the NSW Anti-Discrimination Act 1977) is significantly lower than the maximum individual fine for racial vilification (10 penalty units versus 50 penalty units).

[xix] Section 17 of the Tasmanian Anti-Discrimination Act 1998.

[xx] Section 19 of the Tasmanian Anti-Discrimination Act 1998.

[xxi] Sub-sections 38C(3)(b) and 49ZO(3)(b), NSW Anti-Discrimination Act 1977.

[xxii] Section 84, Victorian Equal Opportunity Act 2010.

[xxiii] Section 35ZD, Western Australian Equal Opportunity Act 1984.

[xxiv] Sub-section 34(4), South Australian Equal Opportunity Act 1984.

[xxv] The inclusion of ‘marital status’ rather than ‘marital or relationship status’ is also out-dated.

Submission to Inquiry into the Status of the Human Right to Freedom of Religion or Belief

The Joint Standing Committee on Foreign Affairs, Defence and Trade is currently holding an inquiry into ‘religious freedom’, although sadly it is disproportionately focused on promoting the freedom to, rather than freedom from, religious belief. My submission below attempts to redress this imbalance. For more details on the inquiry, click here.

 

Committee Secretary

Joint Standing Committee on Foreign Affairs, Defence and Trade

PO Box 6021

Parliament House

Canberra ACT 2066

religionorbelief@aph.gov.au

 

Dear Committee Secretary

 

Inquiry into the Status of the Human Right to Freedom of Religion or Belief

 

Thank you for the opportunity to provide a submission to the above-named inquiry.

 

In this submission, I will be focusing on Term of Reference 4, namely:

 

“Australian efforts, including those of Federal, State and Territory governments and non-government organisations, to protect and promote the freedom of religion or belief in Australia and around the world, including in the Indo-Pacific region.”

 

In my view, Australian Governments, of all levels, all-too-often promote the freedom of religion – and in particular, the freedom of christian beliefs – at the expense of the equally-important freedom from religion.

 

The imposition of christianity on others, including on those who are atheist or have no religious belief, as well as its negative consequences for many lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians (who may or may not be christian themselves), can be observed in multiple ways.

 

Symbolically, there is a range of ways in which christianity is treated preferentially in Australian law which I believe is inappropriate in a country which is, or at least should be, secular (and by that I mean a nation that does not favour, or disfavour, any particular belief or lack of belief).

 

This includes having a formal head of state (the King or Queen of England) who is also, as a function of this role, the symbolic head of a christian denomination (the Anglican church), as well as the fact that each Commonwealth parliamentary sitting day begins with the recitation of a christian statement (the lord’s prayer).

 

More substantively, there are a number of ways in which the principle of separation of church and state – which should operate to protect both secular government, and the free exercise of religion, including freedom from religion – has been fundamentally breached by Federal, and State and Territory, Governments. This is especially apparent in education, and particularly in relation to public schools.

 

First, the inclusion of Special Religious Instruction (SRI) or Special Religious Education (SRE) in the school timetable is completely inappropriate because religious indoctrination, which is primarily christian indoctrination, should have no place in public classrooms.

 

On a practical level, SRI/SRE is also flawed for several reasons, including that it regularly operates as an ‘opt-out’ system rather than ‘opt-in’, and also because the ‘choice’ in many state schools is limited to either attending a lesson of christian indoctrination, or doing nothing (there can be few better examples of wasting time than mandating some students do not learn anything at all because other students are learning about their particular god or gods, something that should instead be taking place in the home or their respective place of worship).

 

SRI/SRE also frequently has a detrimental impact on LGBTI students. This is because it is disproportionately conducted by evangelical christians who, as numerous publicly-reported examples demonstrate, are more likely to express anti-LGBTI views, causing harm to students who are not cisgender and/or heterosexual.

 

As recently noted by crikey[i]:“While religious groups complain about the teaching of sex education issues, the [NSW Government] review found that religious instruction teachers were “overstepping the mark” in addressing issues of sexuality and explicitly expressing homophobic views.”

 

A second example of the fundamental breach of the separation of church and state in relation to government schools, which infringes upon the freedom from religion, can be found in the long-running, controversial National School Chaplaincy Program, which involves the (mis)use of public monies to pay public schools to hire people who – at least for the majority of the scheme’s existence – must be religious in order to be employed.

 

Despite guidelines that stipulate these religious (and in the vast majority of cases, christian) appointees must not ‘proselytise’ in the classroom or schoolyard, it is inevitable that many will – with evidence that they have repeatedly done so collected over many years[ii].

 

From my perspective there can be no proper policy justification for the allocation of literally hundreds of millions of Commonwealth, and therefore taxpayer, dollars on a program that preferentially employs people of a religious background (and excludes people who are not religious).

 

This breach is especially egregious because if public money is to be provided to promote student welfare, then that money should be directed towards employing the best qualified people to do so – trained school counsellors, who may or may not be religious (but whose religious beliefs, or lack thereof, are irrelevant to their ability to perform the role) – rather than ‘chaplains’ who must be of a religious background.

 

These two policies – SRI/SRE, and the National School Chaplaincy Program – are clear examples of the preferential treatment of religion, and primarily christianity, in contemporary Australia.

 

However, the most fundamental way in which the freedom from religion is infringed upon in Commonwealth, State and Territory policy is through the operation of ‘religious exceptions’ to anti-discrimination laws.

 

While appropriate recognition of freedom of religion would accord individuals and groups the right to hold beliefs, to celebrate those beliefs through religious ceremonies, as well as to appoint ministers of religion and other religious office-holders, these religious exceptions go far beyond what is necessary to achieve those aims.

 

Instead, they allow religious organisations to discriminate against employees, and in many cases against people accessing services, in an extraordinarily broad range of situations.

 

This includes discrimination in key areas of public life (including health and education), discrimination against people on the basis of irrelevant factors (for example, refusing to hire a qualified mathematics teacher on the basis of their sexual orientation), and discrimination in the use of public funds (in a number of circumstances, religious organisations are permitted to discriminate even where the service involved is part, even in large part, publicly-funded).

 

Of course, many religious organisations will argue that the ability to discriminate in each of these situations is necessary to ‘manifest beliefs in community with others’. However, such rights are not, and should not be, unfettered.

 

As observed by the Australian Human Rights Commission in their submission to this Inquiry:

 

“Legitimate limitations on the freedom to manifest a religion or belief in worship, observance or practice must be prescribed by law and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

 

Anti-discrimination laws, such as the Commonwealth Sex Discrimination Act 1984, exist to protect a variety of groups against harm – effectively protecting their fundamental rights and freedoms – and they should not be undermined by the granting of special rights to discriminate to religious organisations.

 

It should also be noted that these religious exceptions are disproportionately used to adversely treat lesbian, gay, bisexual and transgender (LGBT) people[iii], who may or may not be religious themselves, but who nevertheless do not deserve to be discriminated against as they go about their daily lives simply because of who they are or who they love.

 

Essentially, religious exceptions to anti-discrimination laws deny too many LGBT Australians the right to be free from religion, and free from the negative consequences of homophobia, biphobia or transphobia that is based on, or claimed to be based on[iv], religious belief.

 

Perhaps the worst examples of these laws – and the clearest demonstration of how they inherently lead to human rights abuses against LGBT people (among others) – are the religious exceptions that allow religious schools to discriminate against students on the basis of their sexual orientation and gender identity.

 

For example, section 38 of the Commonwealth Sex Discrimination Act 1984 not only permits discrimination against LGBT [school] employees and contract workers (which is unacceptable in and of itself), sub-section (3) also states that:

 

“Nothing… renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

 

Basically, under the Sex Discrimination Act, religious schools are given free rein to mistreat lesbian, gay, bisexual and transgender students, including by expelling or refusing to enrol these students (or refusing to enrol the children of rainbow families), teaching them that who they are is not okay, or in other ways treating them significantly worse than heterosexual and/or cisgender students.

 

The majority of states and territories have adopted similar provisions with NSW even going so far as allowing all non-government schools, including private schools that are not religious at all[v], to adversely treat LG and T students[vi].

 

It should be noted that the overwhelming majority of these religious schools are in receipt of Commonwealth, and State or Territory, funds, including from LGBT taxpayers – the notion that my taxes are being used by these organisations to actively discriminate against young lesbian, gay, bisexual and transgender students is both heartbreaking, and infuriating.

 

But, even if absolutely no taxpayer funds were involved, allowing religious schools to discriminate in this way would still be a fundamental breach of the human rights of these students to be who they are – including their sexual orientation and/or gender identity, which are both inherent or essential attributes – and to not be unfairly discriminated against as a result.

 

This principle is reinforced if we substitute students of different racial or ethnic backgrounds for LGBT students. We would not legally allow schools, whether government, religious or otherwise independent, to discriminate against students on the basis of their race or ethnicity. So why should we permit any school, irrespective of its ownership, to discriminate against LGBT students for who they are?

 

In short, any student, in any school, could be lesbian, gay, bisexual, transgender or intersex – and they each have a fundamental right to education, free from discrimination on the basis of their sexual orientation, gender identity or intersex status.

 

Logically, the only way in which this can be guaranteed is for every school to provide a learning environment that treats all students – heterosexual, cisgender and LGBTI-alike – equally.

 

In my view, the best interests of children in this situation, who are at their most vulnerable and whose protection is the responsibility of governments of all levels, especially in education which sits squarely in the public sphere, must supersede the religious beliefs of parents, or the schools themselves.

 

To suggest otherwise is to argue that LGBTI students in religious schools are just collateral damage of the ‘right’ to freedom of religion of others, and that the adverse consequences they inevitably suffer – from mistreatment and exclusion, to bullying, mental health issues and even suicide – should simply be ignored.

 

Well, I will not ignore these consequences, and I submit that this Committee, and the Commonwealth Parliament, must not ignore them either.

 

Which means that, if the Joint Standing Committee on Foreign Affairs, Defence and Trade is genuinely interested in the issue of how ‘to protect and promote the freedom of religion or belief in Australia’, then it must also consider the issues of how to protect and promote the freedom from belief, and how to protect LGBTI people from the negative consequences of the religious beliefs of others.

 

This includes investigating why religious indoctrination continues to feature in the nation’s public school classrooms (in the form of Special Religious Instruction or Special Religious Education), as well as why hundreds of millions of Commonwealth dollars continue to be allocated to employing religious people in our schoolyards (through the National School Chaplaincy Program).

 

Above all, it means questioning why religious organisations should be granted special rights to discriminate against lesbian, gay, bisexual and transgender employees, and people accessing services (through wide-ranging ‘religious exceptions’ to anti-discrimination laws), and why religious schools are legally permitted to mistreat LGBT students simply because of who they are.

 

Thank you again for the opportunity to provide a submission to this important inquiry. Please do not hesitate to contact me at the details provided should the Committee wish to clarify any of the above, or for further information.

 

Sincerely,

Alastair Lawrie

 

Simon Birmingham

Commonwealth Education Minister Simon Birmingham, who couldn’t find $2 million per year to continue Safe Schools, but provides $60 million+ per year to the National School Chaplaincy Program.

 

Footnotes:

[i] “Homophobic, anti-science and frightening” religious instruction teachers remain in NSW, crikey, 12 April 2017.

[ii] See Chaplains accused of pushing religion in schools, ABC News, 8 April 2011 and Brisbane school chaplain being investigated for proselytizing after claiming his mission is to disciple school children and their families, Courier Mail, 18 May 2014.

[iii] It is considered unlikely that religious exceptions under the Commonwealth Sex Discrimination Act 1984 would be employed against intersex people.

[iv] The inclusion of religious exceptions to anti-discrimination laws actually encourages individuals and organisations to claim that anti-LGBTI prejudice is based on religious belief because it is less likely to attract consequences (even if the anti-LGBTI prejudice in fact has nothing to do with religion whatsoever).

[v] See NSW Anti-Discrimination Act 1977 sections 49ZO(3), and 38K(3).

[vi] Remembering that, in 2017, the NSW Anti-Discrimination Act 1977 still does not protect bisexual people against discrimination.

Equal Means Equal – Submission to Inquiry into Marriage Amendment (Same-Sex Marriage) Bill

Update 15 February 2017:

The Senate Committee Inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill has been completed, with its report tabled in Parliament this afternoon (Wednesday 15 February 2017). A copy of the Report can be found here.

 

The Report itself includes some positives, and some areas of possible concern.

 

On the positive side, the Committee has acknowledged that adding a stand-alone right for ministers of religion to discriminate against same-sex couples is both unnecessary, and explicitly discriminatory (page 15).

 

The Committee also did not support the introduction of broad new rights for civil celebrants to discriminate against LGBTI couples, noting that they “are authorised to perform a function on behalf of the state and should be required to uphold Commonwealth law” (page 24).

 

On the other hand, the Committee has attempted to define a new category of ‘religious marriage celebrants’ – who are not ministers of religion but conduct marriages for faith communities – and then providing them with similar rights to discriminate as ministers of religion (page 23).

 

While that compromise may seem reasonable, some of these same celebrants also officiate at secular ceremonies, and under no circumstances should they be allowed to discriminate when they are effectively operating as a civil celebrant.

 

In the same way, the proposal that existing civil celebrants should be allowed to register as ‘religious marriage celebrants’, and therefore benefit from the same right to discriminate (page 24), must not apply to any situation in which they continue to oversee civil ceremonies.

 

The Committee also questioned the need for new special rights for religious bodies and organisations to discriminate against same-sex couples – although that is because it believes they may already be allowed to do so because of the overly-generous religious exceptions provided under the Sex Discrimination Act 1984 (page 31).

 

It also discusses, although doesn’t explicitly support, clarifying their ‘right’ to refuse to provide facilities, goods and services in situations that are “intrinsic to, directly associated with and intimately involved in a wedding ceremony” (page 32). Once again, this would unacceptably undermine a reform that is, at its heart, supposed to be about the equal recognition of equal love.

 

Finally, the Committee observed that “[i]n relation to military chaplains, the committee notes that the proposed amendment would not change the current law”, and then suggests the reintroduction of ‘marriage officers’ to provide an alternative method for LGBTI military couples to marry (page 24).

 

While it may not change existing law, a) there must not be a new stand-alone note to section 81 that singles out same-sex couples for adverse treatment and b) as public servants, paid for with our taxes, and with an obligation to serve all personnel equally, the right of military chaplains to discriminate in this way should be abolished.

 

With the Report finalised, pressure now returns to our 150 House of Representatives MPs, and 74 Senators (with two current vacancies), to find a way forward on marriage equality, and ensure it is passed as quickly as possible.

 

But it must also be done as fairly as possible. I would argue there is absolutely nothing in the Committee Report that would justify the inclusion of new special rights to discriminate against LGBTI couples in any marriage equality bill.

 

In which case, in the coming weeks and months it will be up to us to continue to remind Prime Minister Malcolm Turnbull – and Opposition Leader Bill Shorten, as well as the Greens and crossbench MPs and Senators, in fact anyone who will listen to us – that equal means equal, and that means passing marriage equality without new religious exceptions.

 

Original Post:

The Senate is currently conducting an inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill. This is the legislation that the Government would have introduced had the marriage equality plebiscite been held, and had that vote been successful.

Full details of the inquiry can be found here. It is due to report on Monday 13 February 2017, although what happens afterwards remains unclear.

My submission to the inquiry, which focuses on the provisions of the Bill that seek to treat LGBTI couples differently to, and worse than, other couples, has now been published, and is reproduced below:

 

Committee Secretary

Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

Department of the Senate

PO Box 6100

Canberra ACT 2600

samesex.marriage.sen@aph.gov.au

 

Friday 13 January 2017

 

Dear Committee Secretary

 

Submission on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

 

Thank you for the opportunity to provide a submission in relation to this inquiry, which is examining the Government’s Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill (‘the Bill’).

 

In this submission, I will explain my personal reasons for opposing several provisions contained within the Bill, before addressing terms of reference a), b) and c) in detail. This will include my main recommendations for amendment to, and improvement of, the proposed legislation, before concluding with a short summary of this submission and its recommendations.

 

**********

 

Introduction: Equal Means Equal

 

I met my fiancé Steven in August 2008, two weeks after my 30th birthday and just one week after the wedding of my brother to his wife.

 

It was clear from the very beginning that this relationship was different from any that had come before. And I know that applies for both of us.

 

Within 12 months we began planning the rest of our lives together. Steven and I have lived together from January 2010 onwards, and now own a home together.

 

More importantly, we have been engaged to be married since 23 January of that same year.

 

That means, in exactly ten days’ time, we will have been waiting for the legal right to get married for a full seven years. Our engagement has already lasted longer than the marriages, from beginning to end, of many Australian couples.

 

All we want is exactly the same right to wed, and to have that wedding recognised under secular law, as my brother when he married his wife, and as my sister when she married her husband in 2006.

 

Significantly, the Bill that is being considered as part of this inquiry would allow Steven and I to finally ‘tie the knot’. That aspect of the Bill, contained in clause 1 (amending subsection 5(1) (definition of marriage) to “omit “a man and a woman”, substitute “2 people””), is obviously welcome.

 

However, if passed as drafted, a number of other provisions in the Bill would ensure that, rather than being treated the same as my brother and his wife, or my sister and her husband, this legislation would ensure Steven and I were subject to adverse, and discriminatory, treatment simply because of who we are.

 

The civil celebrant who officiated at the ceremony between my sister and her husband would have the ‘right’ to reject us because we are not “a man and a woman”.

 

Any ‘religious organisation or body’, broadly defined, that provided wedding-related facilities, goods and services would be able to turn us away because of our sexual orientation. And that ‘right’ would apply even where they operated for profit, and even though the same groups could not discriminate against my siblings.

 

In short, the Bill would establish two different classes of couples – ‘man and woman’ couples, versus everyone else – with the latter category, including Steven and me, enjoying lesser rights than the former.

 

While this legislation will deliver marriage, it will not deliver marriage equality. That outcome is unacceptable both to me, and to my fiancé Steven.

 

There is no legitimate reason why we should be treated worse than my brother and my sister were when they decided to marry their respective partners. Because we are not ‘worse than’ anyone, them included.

 

Equal means equal. Or at least it should – and I sincerely believe that principle must be reflected in the Marriage Act.

 

**********

  

Term of reference a) the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions.

 

The Bill proposes four new and/or expanded special rights to discriminate against couples that include lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. All four are unnecessary and unjustified. All four should be removed from the legislation to help achieve genuine marriage equality.

 

  1. A specific right for ministers of religion to discriminate against couples that are not “a man and a woman”

 

I should begin by noting that I agree with the ability of authorised celebrants who are ministers of religion to refuse to perform any religious ceremonies, including weddings, that do not fit within the beliefs of their religion. That obviously includes the right to refuse to marry LGBTI couples, even if I personally believe that such discrimination is abhorrent.

 

However, it is important to remember that ministers of religion already have the right to refuse to perform any ceremony under existing section 47 of the Marriage Act 1961:

 

Ministers of religion not bound to solemnise marriage etc.

Nothing in this Part: (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…”

 

If the right for LGBTI couples to marry was finally recognised under Commonwealth law, that section would plainly allow ministers of religion to deny them service. Therefore, no new amendments are required to the Act to allow ministers of religion to refuse to officiate LGBTI weddings.

 

In which case, the proposed repeal of section 47, and replacement with a more detailed right to discriminate, is entirely unnecessary. In particular, proposed new sub-section 47(3) states:

 

Refusing to solemnise a marriage that is not the union of a man and woman

(3) A minister of religion may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) any of the following applies:

(i) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

(ii) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(iii) the minister’s conscientious or religious beliefs do not allow the minister to solemnise the marriage.”

 

The inclusion of this unnecessary new sub-section, which highlights the ability of ministers of religion to discriminate against one class of couple (LGBTI people) and one class of couple only, is discriminatory and should be rejected.

 

Recommendation 1: Proposed new section 47, and especially sub-section 47(3), is both unnecessary and discriminatory and should be removed from the Bill. Existing section 47 of the Marriage Act would continue to allow ministers of religion to refuse to perform any marriage ceremony.

 

**********

 

  1. A new special right for civil celebrants to discriminate against couples that are not “a man and a woman”

 

Currently, only ministers of religion have an explicit ‘opt-out’ clause under the Marriage Act 1961, allowing them to decline to perform any marriages with which they disagree.

 

No equivalent provision or power exists for civil celebrants – which is entirely reasonable, given they are essentially ‘small businesses’, providing a service that the government has authorised them to, and explicitly not acting on behalf of any religion or religious organisation.

 

However, the Bill proposes an entirely new special right for ‘secular’ civil celebrants to reject LGBTI couples just because of who they are. Proposed new section 47A reads:

 

Marriage celebrants may refuse to solemnise marriages

(1) A marriage celebrant (not being a minister of religion) may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the marriage celebrant’s conscientious or religious beliefs do not allow the marriage celebrant to solemnise the marriage.”

 

This is, to put it simply, outrageous.

 

There is absolutely no reason why someone who is engaged in small business should be able to discriminate in such a way, against people who are LGBTI, solely because of their personal beliefs. It is the equivalent of encouraging celebrants to put up a sign saying ‘no gays (or lesbians, or bisexuals, or trans people, or intersex people) allowed’.

 

The fact that, unlike ministers of religion who are able to discriminate against any couples, civil celebrants will only be allowed to discriminate against LGBTI couples, merely highlights the homophobia, biphobia, transphobia and intersexphobia that lies at the heart of this proposed new section.

 

And, with civil ceremonies now accounting for three-in-four of all mixed-sex weddings[i], and likely forming an even higher proportion of LGBTI weddings (at least in part because some religions will continue to turn couples away that are not “a man and a woman”), this prejudiced provision will impact on a large number of LGBTI couples. For all of these reasons, it should be rejected.

 

Recommendation 2: Proposed new section 47A, which establishes an entirely new special right for civil celebrants to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

**********

 

  1. A new special right for religious bodies and organisations to discriminate against couples that are not “a man and a woman”

 

Unfortunately, under the Bill it is not just civil celebrants who will be allowed to put up unwelcome (on multiple levels) signs saying ‘no gays, or lesbians, or bisexuals, or trans people, or intersex people, allowed.’

 

Religious bodies or organisations will also be able to do so under proposed new section 47B, which reads:

 

Religious bodies and organisations may refuse to make facilities available or provide goods or services

(1) A religious body or a religious organisation may, despite any law (including this Part), refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the refusal:

(i) conforms to the doctrines, tenets or beliefs of the religion of the religious body or religious organisation; or

(ii) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

 

There are a number of significant problems with this provision.

 

First and foremost, by not defining what a ‘religious body’ or ‘religious organisation’ is, it is difficult to know exactly who will be able to exercise this new specific right to discriminate (with the possibility that the number of groups permitted to turn away LGBTI couples will be quite high).

 

Secondly, by not defining the phrases ‘for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage’, (and especially the term ‘reasonably incidental’) it is also difficult to know the scope of this new special right to discriminate.

 

However, even if both the number of groups allowed to discriminate, and the exact circumstances in which they were allowed to do so, were known, this proposed new section would still be fundamentally flawed.

 

That is because it authorises discrimination against LGBTI couples far beyond any right to refuse to conduct weddings in places of worship, like churches, which would likely be justified on the basis of religious freedom.

 

Instead, it permits adverse treatment of couples who are not “a man and a woman” in a wide range of circumstances, including in hiring venues where it is not a place of worship, and in the provision of goods and services even where this is engaged in on a commercial basis, for profit.

 

One consequence of this is that it would establish a negative precedent for the future expansion of this right to discriminate to other individuals and businesses, such as florists, bakers, photographers or wedding reception venues, who are not religious bodies or organisations, to refuse service to LGBTI couples.

 

If other commercial enterprises are allowed to do so (because they are run by religious groups), and even civil celebrants are permitted to discriminate on the basis of their personal beliefs, it is entirely predictable that additional groups will demand their own ability to reject couples who are not “a man and a woman.”

 

Despite all of the above faults, however, the major flaw with the provision is that it is a direct attack on LGBTI couples and LGBTI couples only. It singles out any relationship that doesn’t fit within the definition of “a man and a woman” for special, and detrimental treatment – and literally nobody else.

 

That makes this proposed provision homophobic, biphobic, transphobic and intersexphobic, and it too should be rejected.

 

Recommendation 3: Proposed new section 47B, which establishes an entirely new right for religious bodies or organisations to discriminate in the provision of wedding-related facilities, goods and services against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

**********

 

  1. A specific right for Defence Force chaplains to discriminate against couples that are not “a man and a woman”

 

The Bill’s fourth and final new and/or expanded special right to discriminate against LGBTI couples is provided to Defence Force chaplains.

 

This is established through the addition of a note to existing section 81 of the Marriage Act 1961, which deals with the rights of Defence Force chaplains to refuse to solemnise weddings. That note would read:

 

“Example: a chaplain may refuse to solemnise a marriage that is not the union of a man and a woman where the refusal conforms to the doctrines, tenets or beliefs of the chaplain’s church or faith group.”

 

While these chaplains are ministers of religion, and therefore would potentially have the ability to discriminate against any couple, they are also a special class of celebrant, because:

 

  • They are public servants, paid for out of everyone’s taxes – LGBTI and non-LGBTI, and religious and non-religious, alike[ii], and
  • In their duties, Defence Force chaplains are expected to “administer spiritual support to all members, regardless of their religion”[iii] (emphasis added).

 

Therefore, permitting discrimination by Defence Force chaplains fails in principle on two counts:

 

  • As public servants, they should not be able to discriminate against members of the public simply because of their personal beliefs – otherwise we are allowing the Australian equivalent of Kim Davis, and
  • In providing spiritual support for Defence Force personal, they are expected to do so for all people, not just those who are cisgender and heterosexual.

 

Which means that, if Defence Force chaplains are to continue to be authorised to officiate any weddings, it must include the weddings of LGBTI people. To do otherwise is, once again, homophobic, biphobic, transphobic and intersexphobic, and it should be rejected.

 

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are obligated to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

 

**********

 

As suggested by term of reference a), the above four new and/or expanded special rights to discriminate against LGBTI couples have ostensibly been included in the Bill by the Government on the basis of the need to protect ‘religious freedom’.

 

However, I would argue that, upon closer inspection, they do no such thing. Rather than protecting religious freedom, these provisions instead protect homophobia, biphobia, transphobia and intersexphobia and merely use religion as an excuse.

 

This can be seen when one remembers that there are a wide variety of different religious beliefs about marriage.

 

Some people believe only cisgender heterosexual couples should be able to marry.

 

Others do not believe in divorce, and therefore oppose the right of people to participate in second, or subsequent, weddings.

 

Some even continue to hold the (once widespread) belief that people of different faiths should not marry – and, in extreme cases, that people of different types of christianity should not marry.

 

I should note that I do not share any of the above beliefs. But others do, and I have no doubt that their views are sincerely held.

 

Given this, there is no possible justification for the Marriage Amendment (Same-Sex Marriage) Bill to allow civil celebrants, religious bodies and organisations and Defence Force chaplains to discriminate against LGBTI couples but not discriminate against divorced people, or against interfaith couples (or on the basis of other religious beliefs about marriage).

 

The fact that it does so, establishing new special rights to discriminate against LGBTI couples, and only LGBTI couples, reveals the fundamental truth of this Bill: it has very little to do with protecting religious freedom, and is more concerned with ensuring people who hold anti-LGBTI views are free to discriminate against couples who are not “a man and a woman” in a wide variety of circumstances.

 

In effect, the Bill privileges homophobic, biphobic, transphobic and intersexphobic beliefs, rather than protecting religious beliefs.

 

That is unacceptable, and merely confirms the earlier recommendations in this submission that these new and/or expanded special rights to discriminate are discriminatory and should be removed from the Bill.

 

I should note here that the Government, having revealed its discriminatory intentions, cannot now turn around and extend these new special rights to discriminate to cover divorced people and interfaith couples because they will only be doing so to cover up the anti-LGBTI nature of its original legislation.

 

Instead, the Government, and Parliament, should focus on amending the Bill to ensure that all couples are (finally) treated in exactly the same way – that equal means equal.

 

**********

 

Term of reference b) the nature and effect of the proposed amendment to the Sex Discrimination Act 1984 and the Commonwealth Government’s justification for it.

 

Currently, sub-section 40(2A) of the Sex Discrimination Act 1984, the legislation that establishes Commonwealth anti-discrimination protections on the basis of sexual orientation, gender identity and intersex status, ensures that “anything done by a person in direct compliance with the Marriage Act 1961” cannot be the subject of an anti-discrimination claim under that legislation.

 

This is justified because it would be entirely unreasonable to hold civil celebrants and others accountable for discriminating against LGBTI couples (because they legally cannot marry them) that has been made compulsory since the Howard Government prohibited marriage equality in August 2004.

 

The amendment of the Marriage Act, to permit all couples to marry irrespective of sexual orientation, gender identity or intersex status, and the removal of this requirement, should therefore be an opportunity to remove or at least significantly curtail this exception to the protections contained in the Sex Discrimination Act.

 

Indeed, the only provision of the Marriage Act that should require an exception would be the ongoing ability of ministers of religion to discriminate against any couples, as established by existing section 47.

 

Consequently, sub-section 40(2A) of the Sex Discrimination Act could, and I would argue should, be restricted to the following:

 

“Nothing in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, affects anything done by a person as authorised by section 47 of the Marriage Act 1961” (emphasis added).

 

Instead, the Bill as drafted actually proposes to expand the exception to the Sex Discrimination Act, because it would permit any discrimination that is ‘as authorised by’ the entirety of the Marriage Act, as redrafted.

 

This is obviously intended to capture all four of the new and/or expanded special rights to discriminate against LGBTI couples outlined earlier. Given the inclusive way this amendment is framed, it may even permit additional forms of anti-LGBTI discrimination.

 

In my view, this is a perverse outcome. Legislation that is intended to remove a long-standing inequality, and injustice, affecting lesbian, gay, bisexual, transgender and intersex Australians, by finally allowing them to marry, actually expands relevant exceptions to the Sex Discrimination Act, thereby increasing the circumstances in which they can lawfully be discriminated against.

 

Once again, this confirms the inappropriateness of the four new and/or expanded special rights to discriminate against LGBTI couples. The proposed amendment to section 40(2A) of the Sex Discrimination Act is also inappropriate, and should be replaced with a narrower exception to that legislation.

 

Recommendation 5: The proposed expansion to the exception contained in sub-section 40(2A) of the Sex Discrimination 1984, allowing discrimination ‘as authorised by’ the Marriage Act 1961, expands the circumstances in which LGBTI people can be discriminated against. This is inappropriate, and this provision should be removed from the Bill. It should be replaced by an amendment that limits this exception to discrimination that is authorised by existing section 47 of the Marriage Act, which allows ministers of religion (and only ministers of religion) to discriminate.

 

**********

 

Term of reference c) potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate.

 

In terms of amendments to improve the effect of the Bill, I have already made five recommendations to significantly improve its impact on the recognition of the human rights of LGBTI Australians. In this section, I will nominate two further areas of necessary reform.

 

  1. The Bill should refer to marriage equality rather than same-sex marriage

 

The Bill, as drafted, would allow all couples, including those that involve lesbian, gay, bisexual, transgender and intersex individuals, to marry under the law. This is an important reform, and it will substantively improve the lives of many LGBTI Australians.

 

However, the title of the Bill – the Marriage Amendment (Same-Sex Marriage) Bill – only refers to ‘same-sex marriage’, rather than marriage equality.

 

This is problematic because the term same-sex marriage does not include all LGBTI couples. It specifically excludes some transgender people (especially those who identify as non-binary or gender-fluid) and some intersex people.

 

The term same-sex marriage should be replaced with marriage equality in the title of the Bill, to ensure that, alongside recognising the substantive human rights of LGBTI Australians, it symbolically recognises the diversity of these communities.

 

Of all major contemporary public policy issues, marriage is a subject in which both the substantive, and the symbolic, are equally important.

 

Recommendation 6: The Bill should be retitled the Marriage Amendment (Marriage Equality) Bill.

 

**********

 

  1. The Bill should allow couples to apply to have specified pre-existing unions recognised as marriages

 

The wait for marriage equality to be recognised under Australian law has been long, often painfully so.

 

It is entirely understandable that, in the interim, many LGBTI couples have chosen alternative ways to have their relationships recognised. This includes many who have travelled overseas (or to consulates within Australia), where marriage equality is lawful, to wed.

 

It also includes couples who have decided to have their relationships recognised under state and territory relationship recognition schemes, including civil partnerships and registered relationships, with or without an associated formally-recognised ceremony.

 

While the Bill will, thankfully, recognise the former (overseas marriages) as marriages, it will not provide any avenue for the latter (civil partnerships or registered relationships) to be recognised in a similar manner.

 

Allowing couples in this situation to apply to have their existing relationship recognised as married would be an acknowledgement of the fact that their mutual commitment to a shared life, and wish to be married, has existed since the date of their commitment being made.

 

It would also acknowledge the discrimination that these couples have endured as a result of the exclusionary nature of the Commonwealth Marriage Act 1961.

 

Recommendation 7: The Bill should allow couples to apply to have specified pre-existing unions, including civil partnerships and registered relationships under state and territory law, to be recognised as marriages where they so desire.

 

**********

 

  1. Marriage equality should be passed as a matter of priority

 

Term of reference c) asks for ‘potential amendments to improve the… likelihood of achieving the support of the Senate.’ With all due respect, I believe that to be an inappropriate request.

 

The real question is why the Senate – and the House of Representatives – have not yet passed legislation to recognise the equality of our relationships, irrespective of sexual orientation, gender identity or intersex status.

 

It has been more than a dozen years since the Howard Government’s homophobic ban on marriage equality was first passed by the Commonwealth Parliament.

 

That means LGBTI couples have now experienced more than a dozen years of discrimination, treated as distinctly ‘2nd class’ in comparison to the relationships of cisgender heterosexual Australians.

 

Tragically, in those dozen years, there have also been countless LGBTI relationships where one or both members have passed away without being able to have their relationship recognised under Commonwealth law. The longer the ban continues, the more relationships will be denied justice.

 

That same dozen years has witnessed much ‘sound and fury’ within the Commonwealth Parliament on this issue, including countless inquiries in the House of Representatives and the Senate (with this one now added to the list), ultimately achieving nothing – because we still cannot marry.

 

So, rather than asking how the Bill can be amended to improve the chances of Senators voting for it, as if just one more ‘compromise’ will be enough to secure sufficient support to get it over the line, we should be asking why won’t Senators, and their colleagues in the lower house, do their jobs and pass marriage equality as a matter of priority.

 

Recommendation 8: The Australian Parliament should pass marriage equality as a matter of priority, because LGBTI Australians have waited long enough – too long, in fact – to have their relationships recognised as equal under secular law.

 

**********

 

Conclusion

 

In this submission, I hope I have successfully conveyed my passion, not just for the subject of marriage equality generally, but also about the issue of marriage equality and religious exceptions specifically – and why any amendments to the Marriage Act should ensure that all couples are treated exactly the same.

 

I am glad that these issues are being examined by the Senate, through this inquiry, and I look forward to the Committee making recommendations to improve both the substance, and the symbolism, of the Marriage Amendment (Same-Sex Marriage) Bill.

 

Thank you for your consideration of this submission. I would welcome the opportunity to speak to the matters raised above at a Committee hearing, should one (or more) be held.

 

I have also included a Summary of this submission on the following two pages.

 

Please do not hesitate to contact me, at the contact details provided with this submission, should you require clarification, or further information.

 

Sincerely

Alastair Lawrie

 

**********

 

Summary

 

Marriage equality is an important issue that affects tens of thousands, hundreds of thousands, Australians, including couples like my fiancé Steven and me.

 

We have been together for more than eight and a half years, and engaged for almost seven years. All we want is the right to be married under secular law, in exactly the same way that my brother married his wife, and my sister married her husband.

 

Unfortunately, while the Marriage Amendment (Same-Sex Marriage) Bill would allow us to marry, it would not do so equally, because it would expose us to potential discrimination that my siblings did not experience.

 

It is marriage, but not marriage equality. And that is not good enough, because equal means equal – and that principle should be reflected in the Marriage Act.

 

I make seven recommendations to improve the Marriage Amendment (Same-Sex Marriage) Bill, as well as an eighth, that marriage equality should be passed as a matter of priority.

 

Recommendation 1: Proposed new section 47, and especially sub-section 47(3), is both unnecessary and discriminatory and should be removed from the Bill. Existing section 47 of the Marriage Act would continue to allow ministers of religion to refuse to perform any marriage ceremony.

 

Recommendation 2: Proposed new section 47A, which establishes an entirely new special right for civil celebrants to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

Recommendation 3: Proposed new section 47B, which establishes an entirely new right for religious bodies or organisations to discriminate in the provision of wedding-related facilities, goods and services against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are supposed to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

 

Recommendation 5: The proposed expansion to the exception contained in sub-section 40(2A) of the Sex Discrimination 1984, allowing discrimination ‘as authorised by’ the Marriage Act 1961, expands the circumstances in which LGBTI people can be discriminated against. This is inappropriate, and this provision should be removed from the Bill. It should be replaced by an amendment that limits this exception to discrimination that is authorised by existing section 47 of the Marriage Act, which allows ministers of religion (and only ministers of religion) to discriminate.

 

Recommendation 6: The Bill should be retitled the Marriage Amendment (Marriage Equality) Bill.

 

Recommendation 7: The Bill should allow couples to apply to have specified pre-existing unions, including civil partnerships and registered relationships under state and territory law, to be recognised as marriages where they so desire.

 

Recommendation 8: The Australian Parliament should pass marriage equality as a matter of priority, because LGBTI Australians have waited long enough – too long, in fact – to have their relationships recognised as equal under secular law.

 

Whenever marriage equality is finally passed by the Commonwealth Parliament, and I genuinely hope it does so soon, it must ensure that all couples are treated equally, because we cannot end up with a situation where ‘some couples are more equal than others’.

 

equalmeansequal-4

 

Footnotes:

 

[i] “[T]he proportion of marriage ceremonies overseen by a civil celebrant increased again to 74.9 per cent of all marriages in 2015”: Marriage and Divorces, Australia, 2015, Australian Bureau of Statistics, November 2016.

[ii] The Defence Jobs Australia website indicates that chaplains are paid over $94,200 following completion of basic training.

[iii] Also from the Defence Jobs Australia website.